LIBRARY 

JNIVERSIT^  OP 
CALIFORNIA 
SAN  DIC60 


14 

35 


C?r 


MAGNA   CARTA  AND    OTHER   ADDRESSES 


COLUMBIA   UNIVERSITY   PRESS 
SALES  AGENTS 

NEW    YORK 

LEMCKE   &   BUECHNER 
30-32  West  27th  Street 

LONDON 
HUMPHREY   MILFORD 

Amen  Corner,  E.G. 


MAGNA  CARTA 

AND  OTHER  ADDRESSES 


BY 


WILLIAM  D.   GUTHRIE 


COLUMBIA  UNIVERSITY  PRESS 
1916 

All  rights  reserved 


COPTRIGHT,    1916, 

By  COLUMBIA  UNIVERSITY  PRESS. 


Set  up  and  electrotyped.    Published  August,  1916. 


CONTENTS 

PAGE 

I.   MAGNA  CARTA 1 

Address  before  the  Constitutional  Convention  of  the  State 
of  New  York  at  its  celebration  of  the  seven-hundredth 
anniversary  of  Magna  Carta,  Albany,  June  15,  1915. 

II.   THE   MAYFLOWER   COMPACT 27 

Response  to  the  toast,  "The  Mayflower  Compact,"  at  the 
twenty-Grst  annual  banquet  of  the  Society  of  Mayflower 
Descendants  in  the  State  of  New  York,  held  at  the  Hotel 
St.  Regis,  New  York,  November  23,  1915. 

III.  CONSTITUTIONAL   MORALITY 42 

Address  before  the  Pennsylvania  State  Bar  Association 
at  its  eighteenth  annual  meeting,  held  at  Cape  May, 
New  Jersey,  June  25,  1912. 

IV.  THE  ELEVENTH  AMENDMENT 87 

Address  before  the  New  York  State  Bar  Association  at 
its  thirt7>'-first  annual  meeting,  held  in  New  York,  January 
25,  1908. 

V.  CRITICISM  OF  THE  COURTS 130 

Read  as  a  supplement  to  the  report  of  a  committee  of  the 
New  York  State  Bar  Association  submitted  at  the  thirty- 
sixth  annual  meeting  of  the  Association,  held  at  Utica, 
January  24,  1913. 

VI.   GRADUATED   OR   PROGRESSIVE  TAXATION 159 

Address  before  the  National  Civic  Federation  at  its 
annual  meeting,  held  in  New  York,  December  13,  1906. 

VII.   THE   DUTY  OF  CITIZENSHIP 178 

Address  as  temporary  chairman  of  the  New  York  Re- 
publican State  Convention,  Saratoga  Springs,  Septem- 
ber 25,  1912. 

VIII.   NOMINATING   CONVENTIONS 219 

Remarks  before  the  Committee  on  Sufl'rage  of  the  Consti- 
tutional Convention  of  the  State  of  New  York,  Albany, 
June  16,  1915. 


vi  CONTENTS 

PAGE 

IX.   CATHOLIC   PAROCHIAL   SCHOOLS 217 

Remarks  at  the  dedication  of  the  Roman  Catholic  paro- 
chial school  at  Glen  Cove,  Long  Island,  New  York, 
September  6,  1915. 

X.   THE    FRANCE-AMERICA    COMMITTEE    OF    NEW 

YORK 261 

Remarks  as  presiding  officer  at  a  luncheon  given  in  honor 
of  the  members  of  the  Anglo-French  Credit  and  Finance 
Commission  at  the  Hotel  Knickerbocker,  New  York, 
October  1,  1915. 

INDEX 271 


MAGNA  CARTA  1 

TO  the  student  of  American  institutions  it  must 
appear  singularly  impressive  and  instructive 
that  the  members  of  the  Constitutional  Convention 
of  the  state  of  New  York  have  paused  in  their 
important  work  to  celebrate  the  seven-hundredth 
anniversary  of  the  Great  Charter  of  Enghsh  Liberties 
and  to  look  back  reverently  through  the  centuries 
to  the  sources  of  our  constitutional  law  and  to  the 
days  when  our  ancestors  were  laying  the  foundations 
of  civil  liberty  and  political  justice.  It  is,  indeed, 
no  exaggeration  to  assert  that  Magna  Carta  marked 
the  greatest  political  epoch  in  the  history  of  our 
race,  in  that  it  saved  England  from  becoming  one 
of  the  arbitrary  and  degrading  despotisms  wliich 
arose  in  Europe  after  the  overthrow  of  the  feudal 
system,  and  that  from  its  principles  sprang  repre- 
sentative and  constitutional  govermnent,  with  all 
that  these  terms  have  grown  to  mean  to  Americans. 
This  ceremony  must  again  emphasize  the  great  truth 
that  everything  which  has  power  to  win  the  obedi- 
ence and  respect  of  men  must  have  its  roots  deep 
in  the  past,  and  that  the  more  slowly  instilutions 
have  grown,  so  much  the  more  enduring  are  they 
likely  to  prove. 

*  Address  before  the  Constitutional  Convention  of  the  state  of  New  York 
at  its  celebration  of  the  seven-hundred tli  anniversary  of  _Magna  Carta, 
Albany,  June  i5,  igiB. 


2  MAGNA    CARTA 

Two  hundred  and  eighteen  years  ago  the  royal 
governor  of  New  York  is  reported  to  have  ex- 
claimed to  the  legislature  of  the  colony:  "There 
are  none  of  you  but  are  big  with  the  privileges  of 
Magna  Carta."  And  to-day,  Mr.  President,  can  it 
not  be  said  with  equal  force  and  pride  that  there 
are  no  Americans  but  are  big  with  the  privileges  of 
Magna  Carta.^  Long  may  that  continue  to  be  true! 
To  provide  that  the  spirit  of  these  privileges  shall 
endure  forever,  so  far  as  lies  in  human  power,  is 
the  highest  and  noblest  duty  of  every  American 
constitutional  convention. 

Other  speakers  will  treat  of  the  historical  and 
political  aspects  of  Magna  Carta  and  of  its  reissues 
and  confirmations  by  king  after  king  and  parlia- 
ment after  parliament.  I  am  to  speak  of  the  legal 
value  of  some  of  the  cardinal  features  of  the  Great 
Charter  as  antecedents  of  principles  which  are 
closely  connected  with  our  present  political  life  and 
which  continue  to  invigorate  our  system  of  consti- 
tutional law.  But  my  treatment  of  this  large  and 
important  aspect  of  the  subject  must  necessarily 
be  inadequate,  in  view  of  the  limited  time  at  your 
disposal. 

It  is  undoubtedly  true  that  Magna  Carta  con- 
tained much  that  was  old  in  I2i5  and  much  that 
subsequently  became  antiquated  because  inapplica- 
ble to  changed  conditions;  yet  it  then  crystallized 
and  served  to  perpetuate  the  fundamental  principles 
of  the  liberties  of  Englishmen.  Solemnly  confirmed 
no  less  than  thirty-seven  times  by  seven  kings  of 


MAGNA    CARTA  3 

England,  it  naturally  became  in  the  eyes  of  English- 
men the  embodiment  of  their  deepest  and  most 
firmly  rooted  rights  and  hberties  and  their  great 
and  stirring  battle-cry  against  tyranny.  The  reissue 
of  1225  still  remains  on  the  English  statute  books  as 
in  full  force  and  effect,  so  that,  as  an  English  his- 
torian has  recently  said,  every  act  appearing  on  the 
statute  rolls  is  in  a  sense  an  act  amending  Magna 
Carta. 

The  spirit  of  Magna  Carta,  as  it  thus  survived, 
has  for  centuries  inspired  Englishmen  and  Ameri- 
cans, even  though  its  letter  may  be  dead  and  most 
of  its  provisions  may  long  ago  have  become  obso- 
lete and  their  exact  meaning  hidden  beneath  the 
ruins  of  the  past.  Indeed,  provisions  of  the  Great 
Charter  were  frequently  violated  by  king  and  parlia- 
ment after  I2i5,  and  were  allowed  to  fall  into  neglect 
for  generations  at  a  time;  but  it  cannot  be  doubted 
that,  if  the  principles  they  embodied  had  been  ob- 
served, they  would  have  secured  permanent  political 
liberty  and  constitutional  government  to  England 
long  before  the  seventeenth  century,  and  that  only 
disregard  of  those  principles  made  possible  the  five 
centuries  of  tyranny  and  oppression  recorded  by 
English  history. 

It  may  hkewise  be  true,  as  some  historians  of  the 
scientific  school  are  now  contending,  that  the  framers 
of  the  Great  Charter  and  the  representatives  of  the 
English  church,  baronage  and  people  gathered  on 
the  meadows  at  Runnymede  on  the  i5th  day  of 
June,  12 15,  had  little  or  no  grasp  of  the  science  of 


4  MAGNA    CARTA 

politics  or  of  constitutional  principles  as  we  under- 
stand them.  It  is  probably  true  that  they  had  no 
very  definite  conception  of  the  theory  of  representa- 
tive government,  or  of  the  separation  of  govern- 
mental powers,  or  of  those  inalienable  rights  of  the 
individual  which  our  Declaration  of  Independence 
was  later  to  proclaim,  just  as  it  is  probably  true  that 
very  few  of  them  could  even  read  the  language  in 
which  the  charter  was  written.  But  statesmen  and 
lawyers,  in  dealing  with  the  practical  problems  of 
constitutional  government,  will  not  minimize  the 
value  of  Magna  Carta,  and  our  debt  to  the  generation 
that  forced  it  from  King  John,  merely  because  the 
underlying  principles  may  not  have  been  fully  grasped 
by  its  framers  and  its  traditions  may  be  based  on 
legends  and  myths.  It  is  enough  that  the  charter 
contained  the  germ  and  the  spirit  of  civil  liberty  and 
political  justice. 

It  may  be  conceded  that  the  framers  of  Magna 
Carta  builded  better  than  they  knew,  and  likewise 
that  many  of  the  traditions  as  to  the  intent,  mean- 
ing and  scope  of  its  provisions  —  traditions  which 
were  so  potent  and  inspiring  during  the  seventeenth 
and  eighteenth  centuries — were  founded,  as  is  now 
asserted,  upon  legends  and  myths.  Yet,  these  legends 
and  traditions,  growing  up  and  clustering  around 
Magna  Carta,  served  to  keep  alive  and  perpetu- 
ate its  spirit.  They  generated  the  sentiment  which 
impelled  men  to  patriotic  and  heroic  sacrifice  in 
the  cause  of  liberty;  they  sustained  generation  after 
generation   in   the  recurring  struggles  for  political 


MAGNA    CARTA  5 

justice  and  equality  before  the  law;  they  formed  and 
preserved  a  public  morality  which  prevented  viola- 
tions of  the  principles  of  the  Great  Charter,  and  they 
were  of  incalculable  inspiration  and  encouragement 
to  Englishmen  and  Americans,  if  not  to  the  whole 
world.  The  great  traditions  of  Magna  Carta  have 
made  its  heritage  peculiarly  valuable  and  its  service 
to  humanity  immortal.  It  is  because  of  these  tradi- 
tions that  Magna  Carta  is  doubly  sacred  to  us,  as  it 
was  to  our  forefathers. 

Many  of  us,  however,  venture  to  beUeve  that  the 
unknown  author  of  the  original  Articles  of  the  Barons 
or  of  the  Great  Charter  itself — if  it  was  not  the 
learned  Stephen  Langton,  who  had  been  educated 
at  the  University  of  Paris  and  was  famihar  with 
Roman  and  canonical  law  and  the  charters  of  lib- 
erties which  the  kings  of  France  had  been  granting 
to  their  subjects  —  knew  far  more  of  the  underly- 
ing and  vivifying  principles  of  jurisprudence  and  pol- 
itics than  some  of  our  modern  critics  are  wiUing  to 
attribute  to  that  generation.  Be  this  as  it  may,  the 
political  instinct  of  our  race  must  have  guided  the 
framers  to  the  eternal  truths  upon  which  the  Great 
Charter  of  Liberties  was  based,  even  though  they 
imperfectly  comprehended  these  truths,  or  did  not 
comprehend  them  at  all.  A  single  plu-ase  like  "the 
law  of  the  land"  in  a  political  document  is  often 
wiser  than  is  realized,  not  merely  by  the  masses 
who  acclaim  it,  but  even  by  the  leaders  who  write  it. 
It  may  happily  serve  to  preserve  and  compress  into 
very  small  compass  the  relics  of  ancient  wisdom,  not- 


6  MAGNA    CARTA 

withstanding  the  fact  that  later  generations  are  fre- 
quently puzzled  to  decipher  the  contents  and  discover 
the  meaning.  Such  a  phrase,  as  has  been  well  said 
of  the  language  of  a  nation,  "sometimes  locks  up 
truths  wliich  were  once  well  known,  but  which  in 
the  course  of  ages  have  passed  out  of  sight  and  been 
forgotten.  In  other  cases  it  holds  the  germs  of  truths, 
of  which,  though  they  were  never  plainly  discerned, 
the  genius  of  its  framers  caught  a  glimpse  in  a  happy 
moment  of  divination,  .  .  .  and  often  it  would  seem 
as  though  rays  of  truths,  which  were  still  below  the 
intellectual  horizon,  had  dawned  upon  the  imagination 
as  it  was  looking  up  to  heaven."  ^ 

First  and  foremost  among  the  cardinal  principles 
of  Magna  Carta  was  the  idea,  then  beginning  again 
to  germinate  tliroughout  Europe,  that  the  individual 
has  natural  rights  as  against  the  government,  and 
that  those  rights  ought  to  be  secured  to  him  by 
fundamental  laws  wliich  should  be  unalterable  by 
king  or  council.  No  one  can  study  the  history  of 
European  politics  during  the  great  constructive  thir- 
teenth century  without  being  impressed  by  the  fact 
of  the  revival  of  this  conception  in  men's  minds, 
not  only  in  England,  but  on  the  Continent,  where  it 
manifested  itself  in  varying  forms  and  in  different 
connections.  I  say  revival,  because  the  same  con- 
viction had  prevailed  hundreds  of  years  before  in 
both  Greece  and  Rome;  but  it  had  been  lost  for 
centuries. 

The  idea  that  the  fundamental  laws  of  the  land 

^Guesses  at  Truth,  ist  series,  3d  ed.  (18/47),  PP-  324-325. 


MAGNA    CARTA 


—  the  pious  and  good  old  laws  of  Alfred  and  of 
Edward,  as  the  English  called  them,  or  les  lois 
fondamentales,  as  the  French  were  then  calhng  them 

—  were  unalterable  and  that  any  governmental 
regulation,  or  edict,  or  statute  to  the  contrary 
should  be  treated  as  void  and  null,  is  plainly  enun- 
ciated in  the  first  chapter  of  Magna  Carta,  where 
King  John  grants  to  the  freemen  of  the  kingdom 
"all  the  underwritten  hberties,  to  be  had  and  held 
by  them  and  their  heirs,  of  us  and  our  heirs  forever," 
and  in  chapter  sixty-one,  where  the  king  covenants 
that  he  "shall  procure  nothing  from  any  one,  directly 
or  indirectly,  whereby  any  part  of  these  concessions 
and  liberties  might  be  revoked  or  diminished;  and 
if  any  such  thing  has  been  procured,  let  it  be  void 
and  null."  It  is  certain  that  during  the  thirteenth 
and  fourteenth  centuries  the  theory  generally  pre- 
vailed in  England  that  the  concessions  and  liberties 
of  the  Great  Charter  had  been  granted  forever  and 
were  unalterable  by  the  king,  or  even  by  parlia- 
ment. Thus,  we  find  parhament  enacting  in  iSGg, 
with  the  consent  of  Edward  III.,  that  the  Great 
Charter  of  Liberties  should  be  "holden  and  kept 
in  all  points,  and  if  any  statute  be  made  to  the 
contrary,  that  shall  be  holden  for  none." 

One  of  the  scholarly  critics  of  Magna  Carta  sug- 
gests that  this  enactment  of  iSGg  was  quite  an  "il- 
logical theory"  on  the  part  of  parhament,  because, 
to  quote  his  language,  "if  parliament  had  power 
to  alter  the  sacred  terms  of  Magna  Carta,  it  had 
power  to  alter  the  less  sacred  statute  of  iSCg  which 


8  MAGNA    CARTA 

declared  it  unalterable."  ^  The  conclusive  answer 
to  this  kind  of  reasoning,  at  least  as  it  must  seem 
to  statesmen  and  lawyers,  is  that  Magna  Carta  was 
then  regarded  as  something  very  different  from  and 
much  higher  than  any  ordinary  statute.  The  people 
of  that  day  would  have  protested,  if  the  logic  of 
parliament  had  then  been  challenged  by  the  learned, 
that  Magna  Carta  was  a  permanent  charter  of 
liberties  and  as  such  not  subject  to  amendment  or 
nullification  by  mere  statute.  But  logical  or  illogi- 
cal as  the  act  of  !\i  Edward  III.  may  have  been  at 
the  time,  or  may  seem  to  be  to  the  logicians  of  the 
twentieth  centurv,  it  serves  to  show  that  in  the 
fourteenth  century  the  English  people  understood 
and  intended,  and  the  king  and  parliament  expressly 
agreed  and  conceded,  that  the  hberties  guaranteed 
by  the  Great  Charter,  then  being  again  and  again 
confirmed,  were  unalterable,  and  that  any  statute 
to  the  contrary  should  be  "holden  for  none." 

The  spirit  of  that  declaration  still  lives  in  every 
American  constitution.  We  certainly  have  here  the 
antecedent  of  the  great  controlling  principle  under- 
lying the  whole  structure  of  American  constitutional 
law,  that  any  statute  in  conflict  with  the  fundamental 
laws,  so  far  as  we  see  fit  to  perpetuate  them  in  con- 
stitutional provisions,  shall  be  void  and  null,  in  the 
language  of  the  Great  Charter,  or  holden  for  none, 
in  the  language  of  the  time  of  Edward  III.  Chief 
Justice  Marshall  in  the  great  case  of  Marbury  vs. 
Madison,  in  i8o3,  was  but  following  these  ancient 

^  W.  S.  McKechnie,  Magna  Carta,  2d  ed.  (igi/i),  p.  iSg. 


MAGNA    CARTA  9 

declarations  when,  speaking  for  the  Supreme  Court 
of  the  United  States,  he  settled  —  we  hope  for  all 
time  —  the  beneficent  and  indispensable  doctrine 
that  a  statute  contrary  to  an  American  constitution 
must  be  treated  by  the  courts  as  void  and  null  and 
holden  for  none. 

I  do  not  overlook  the  fact  that  this  idea  of  funda- 
mental laws  unchangeable  by  statute  long  slumbered 
in  England,  and  that  the  contrary  —  the  legal  suprem- 
acy of  parliament  —  was  subsequently  established. 
In  studying  this  aspect  of  the  Great  Charter,  we 
must  recall  that  the  conditions  of  life  in  England 
during  the  thirteenth  and  fourteenth  centuries  were 
very  much  simpler  than  those  existing  later,  and 
that  it  was  not  then  reahzed,  or  at  most  only  vaguely 
and  dimly,  that  the  legislative  power  could  change 
the  laws  regulating  the  rights  and  duties  of  indi- 
viduals as  among  themselves  or  in  their  relation  to 
the  government.  The  modern  habit  of  imagining 
that  in  legislation  is  to  be  found  the  panacea  for  all 
ills  and  of  measuring  the  efficiency  of  a  government 
by  the  number  of  statutes  it  has  produced  was 
unthought  of.  Probably  the  only  legislative  func- 
tion in  the  minds  of  Englishmen  during  the  thirteenth 
and  fourteenth  centuries  was  taxation,  and  as  yet 
men  hardly  realized  the  necessity  for  broader  regu- 
lative or  legislative  powers. 

Nevertheless,  the  doctrine  that  the  permanent 
fundamental  principles  of  the  law  of  the  land  guar- 
anteed by  Magna  Carta  were  inviolable  prevailed 
in  England  long  after  the  fourteenth  century,  and 


10  MAGNA    CARTA 

ill  fact  was  declared  in  the  English  courts  as  late  as 
the  seventeenth  century.  Bonham's  case  is  the  most 
familiar  instance  of  the  recognition  of  that  doctrine. 
The  views  of  English  lawyers,  judges  and  statesmen 
have  changed  in  this  respect,  and  it  is  now  settled 
that  parliament  is  supreme  and  that  it  can  amend 
or  repeal  Magna  Carta  in  any  respect  it  may  see  fit. 
The  changed  view  undoubtedly  met  with  ready 
acquiescence,  partly  because  of  the  necessity  for 
amendments  of  the  law  in  order  to  cope  with  chang- 
ing conditions,  partly  because  of  the  unwillingness 
of  the  English  people  to  leave  questions  of  constitu- 
tional power  to  the  comets,  in  view  of  the  dependence 
of  the  judges  upon  the  crown,  but  principally  be- 
cause of  the  confident  belief  that  parliament  existed 
primarily  for  the  very  purpose  of  upholding  and 
protecting  the  rights  and  liberties  secured  to  the 
people  by  the  Great  Charter  of  Liberties,  and  that 
the  people  could  rely  upon  parliament  never 
to  consent  to  the  violation  of  those  rights  and 
liberties. 

Repeatedly  from  the  seventeenth  century  to  our 
own  day  legislation  has  been  criticized  in  Great 
Britain  and  Ireland  on  the  ground  that  it  was 
in  conflict  with  Magna  Carta,  and  always  the 
strongest  and  most  effective  argument  against  pro- 
posed legislation  has  been  that  it  would  violate  the 
principles  of  the  Great  Charter  of  Liberties.  During 
the  past  thirty  years  thoughtful  observers  of  English 
politics  have  remarked  that  private  property  in 
England  is,  on  the  whole,  less  secure  from  attack  on 


MAGNA    CARTA  11 

the  part  of  the  government  in  our  day  than  it  was 
at  the  time  of  the  Stuarts.  Whenever  the  increase 
of  class  legislation  and  attacks  on  private  property 
shall  lead  Enghshmen  to  place  checks  and  restraints 
upon  the  power  of  temporary  majorities,  so  as  more 
effectively  to  protect  personal  and  property  rights  — 
an  event  which,  I  believe,  must  inevitably  come  to 
pass  sooner  or  later  —  then  the  stirring  battle-cry 
will  again  be  Magna  Carta,  and  the  result  may  be  a 
return  to  the  spirit  of  the  declarations  of  Magna 
Carta  and  of  the  statute  of  Edward  III.,  that  any 
statute  contrary  to  the  law  of  the  land  guaranteeing 
the  fundamental  rights  and  liberties  of  the  individual 
shall  be  void  and  null  and  holden  for  none.  And  to 
make  that  ancient,  sound  and  honest  principle  really 
an  effective  protection  to  the  individual  and  to 
minorities,  the  courts  of  justice  of  England  may  at 
last  be  empowered,  as  they  are  with  us,  to  refuse 
to  give  force  and  effect  and  to  hold  for  none  any 
statute  in  conflict  with  the  fundamental  law  of  the 
land. 

Of  an  importance  no  less  vital  than  the  idea  of  a 
permanent  law  of  the  land  safeguarding  the  funda- 
mental rights  and  hberties  of  the  individual,  was  the 
express  declaration  in  the  fu-st  chapter  of  Magna 
Carta  that  the  English  church,  Anglicana  ecclesia, 
should  be  free  from  interference  on  the  part  of  the 
crown  and  that  her  rights  should  be  entire  and  her 
hberties  inviolable.  In  this  provision  we  have  the 
germ  of  an  independent  church  and  the  idea  of  the 
separation  of  Church  and  State. 


12  MAGNA    CARTA 

It  is  reasonable  to  assume  and,  in  view  of  the  sur- 
rounding circumstances  and  the  language  then 
employed,  it  is  highly  probable  that,  under  the  lead 
of  Langton,  who  was  born  of  English  parents  and 
intensely  patriotic,  probably  himself  the  author  of 
the  clause,  the  churchmen  of  that  day  conceived 
that  the  religion  of  the  English  people  ought  to 
be  free  from  governmental  control,  and  that  the 
English  church  had  interests  and  privileges  inde- 
pendent of  the  crown  and  independent  hkewise  of 
the  interests  and  policies  of  Rome.  At  that  very 
time  the  English  churchmen,  in  cooperating  with 
the  barons  and  people  of  England  to  secure  Magna 
Carta,  were  acting  against  the  will  of  Rome;  indeed, 
as  we  know,  the  Pope  promptly  denounced  the  Great 
Charter  and  the  patriot  primate,  because  the  Pope 
considered  that  the  Great  Charter  was  derogatory 
to  the  dignity  of  King  John  as  a  vassal  of  the  Holy 
See.  In  this  provision  of  Magna  Carta  relating  to 
the  English  church,  even  though  it  was  disregarded 
for  centuries,  we  recognize  the  idea  of  religious 
liberty  and  the  American  political  principle  of  the 
separation  of  Church  and  State,  as  also,  though 
vaguely,  the  great  principle  underlying  the  noble 
declaration  in  our  own  state  constitution  that  "the 
free  exercise  and  enjoyment  of  religious  profession 
and  worship,  without  discrimination  or  preference, 
shall  forever  be  allowed  in  this  state  to  all  man- 
kind." 

The  provisions  of  the  Great  Charter  relating  to 
the    administration    of   justice    were    undoubtedly 


MAGNA    CARTA  13 

those  wliich  were  of  chief  concern  to  the  people  at 
large,  as  they  were  certainly,  if  observed,  those 
most  essential  for  the  security  of  their  hberties. 
The  framers  knew  that  it  was  in  tlie  courts  that  the 
king  of  England  would  keep  his  i:>roinises,  if  at  all, 
and  that  the  king's  government  would  only  be  as 
good  as  his  judges  were  learned,  independent  and 
impartial.  In  these  provisions  of  Magna  Carta  we 
find  the  principle  of  the  separation  and  independence 
of  the  judicial  power  and  the  soundest  and  highest 
conceptions  of  the  administration  of  justice,  concep- 
tions far  in  advance  of  those  to  be  found  in  any 
other  document  or  enactment  of  that  age. 

The  framers  had  grasped  the  great  truth  that 
jurisprudence  is  a  science,  that  the  law  must  be 
administered  by  men  learned  in  that  science  and 
bound  to  obey  its  rules  and  follow  its  precedents, 
that  uniformity  and  certainty  are  essential  to  the 
administration  of  justice,  and  that  the  highest 
political  liberty  is  the  right  to  justice  according 
to  law  and  not  according  to  the  will  of  the  judge  or 
the  judge's  master,  or  according  to  the  judge's 
individual  discretion,  or  his  notions  of  right  and 
wrong.  They  had  also  arrived  at  the  conclusion 
that  every  Englishman  was  entitled  as  of  absolute 
right  to  a  day  in  a  court  which  would  hear  before  it 
condemned,  which  would  proceed  upon  notice  and 
inquiry,  and  which  would  render  judgment  only 
after  a  fair  trial.  The  plain  people  of  England 
knew  full  well  that  the  struggle  for  their  old  laws  — 
the  laws  of  their  land,  pious,  good,  fixed  and  perma- 


14  MAGNA    CARTA 

nent,  as  they  devoutly  believed  them  to  be  —  would 
be  fruitless  unless  they  secured  permanent  coiu*ts 
and  learned,  independent  and  impartial  judges; 
and  they  instinctively  felt,  if  they  did  not  clearly 
perceive,  that  the  law  is  infinitely  wiser  than  those 
who  may  be  called  upon  to  administer  it,  and  that, 
as  Aristotle  had  declared  fifteen  hundred  years  before, 
"to  seek  to  be  wiser  than  the  laws  is  the  very  thing 
which  is  by  good  laws  forbidden." 

It  was  Magna  Carta  that  established  in  England 
the  doctrine  of  the  rule  of  law  administered  in  fixed 
courts  by  learned  and  independent  judges  bound  to 
obey  the  law;  and  it  was  Magna  Carta  that  estab- 
lished the  greatest  of  all  the  English  constitutional 
doctrines,  that  of  the  supremacy  of  the  law  over 
every  official  however  high.  When  the  Great  Char- 
ter was  being  translated  and  explained  in  the  cathe- 
drals, churches  and  monasteries  of  England,  the 
people  fully  understood  the  tremendous  significance 
and  value  to  them,  determined  as  they  were  to 
establish  a  rule  of  law  and  put  an  end  to  arbitrary 
decrees,  of  the  famous  covenant  in  chapter  forty-five 
that  the  king  would  "appoint  as  justices,  constables, 
sheriffs,  or  bailiffs  only  such  as  know  the  law  of  the 
realm  and  mean  to  observe  it  well,"  and  of  the 
covenants  in  chapter  seventeen  that  the  "common 
pleas  shall  not  follow  our  court,  but  shall  be  held  in 
some  fixed  place"  —  in  chapter  eighteen  that  the 
petty  assizes  should  be  held  in  the  county  court  — 
in  chapter  thirty-six  that  the  writ  of  inquisition 
should  be  freely  "granted,  and  never  denied"  —  in 


MAGNA    CARTA  15 

chapter  forty  that  "to  no  one  will  we  sell,  to  no  one 
will  we  refuse  or  delay,  right  or  justice,"  which  in 
time  came  to  be  interpreted  as  a  universal  guaranty 
of  free  and  impartial  justice  to  all  classes  high  and 
low. 

For  many  generations  in  England  and  in  America 
it  was  beheved  that  the  writ  of  habeas  corpus,  justly 
esteemed  the  great  bulwark  of  personal  hberty,  had 
its  direct  guaranty  or  at  least  its  antecedent  in  Magna 
Carta.  Such  was  the  contention  of  counsel  in  the 
Five  Knights  case  of  1627,  and  such  was  the  declara^ 
tion  of  the  Petition  of  Right  of  1628.  This  view  is 
now  being  challenged  on  the  ground  that  the  exact 
procedure  subsequently  developed  was  not  provided 
for  in  Magna  Carta  and  was  not  in  the  minds  of  its 
authors.  Even  if  this  be  so,  the  underlying  princi- 
ple of  chapter  tliirty-six  and  its  promise  that  the 
writ  of  inquisition  should  be  freely  "granted,  and 
never  denied"  naturally  led  in  time,  after  the  pass- 
ing of  trial  by  combat,  to  the  right  of  speedy  inquisi- 
tion by  grand  jury  and  trial  by  petit  jury.  At  all 
events,  the  principle  of  the  writ  of  habeas  corpus 
was  for  centuries  assumed  to  be  embodied  in  Magna 
Carta. 

Professor  Dicey  lecturing  at  Oxford  on  "The  Law 
of  the  Constitution"  has  well  remarked  that,  al- 
though the  English  Habeas  Corpus  acts  declare  no 
principle  and  define  no  rights,  they  are  for  practical 
purposes  worth  a  hundred  constitutional  articles 
guaranteeing  individual  liberty.  As  in  England, 
so  with    us.     Without   the  writ  of   habeas   corpus 


16  MAGNA    CARTA 

there  would  be  no  liberty  worthy  of  the  name  and 
no  rights  of  personal  freedom  of  any  practical  value. 
We  have  only  to  read  the  leading  cases  in  our  courts 
to  reahze  how  great  a  part  the  writ  has  played  and 
still  plays  in  securing  and  rendering  effective  the 
fundamental  principles  of  American  liberty. 

Chapters  twelve  and  fourteen  of  Magna  Carta 
dealt  with  the  subject  of  taxation,  and  they  laid  the 
foundation  of  our  representative  system  and  of  the 
separation  of  the  legislative  from  the  executive 
power.  As  has  been  suggested,  the  only  legislative 
function  that  the  people  of  England  in  the  thirteenth 
century  contemplated  as  closely  affecting  them  or 
as  hkely  to  create  any  pressing  grievance  was  that 
of  taxation.  It  was,  therefore,  expressly  provided 
in  the  Great  Charter  that,  aside  from  the  tlu'ee 
existing  feudal  aids,  more  or  less  fixed,  the  power  to 
impose  taxes  should  not  be  exercised  without  the 
consent  of  the  commune  consilium.  This  common 
council  is  the  body  that  fifty  years  later  developed 
into  the  famous  parliament  of  Simon  de  Montfort 
of  1265. 

In  the  controversies  in  regard  to  taxation  subse- 
quently arising,  whether  in  parliament,  in  the  courts, 
or  in  the  forum  of  public  opinion,  it  was  always  in- 
sisted that  Magna  Carta  prevented  taxation  without 
the  consent  of  parliament,  just  as  in  the  eighteenth 
century  our  ancestors  contended  that  Magna  Carta 
prevented  taxation  without  representation,  that  is, 
prevented  the  imposition  of  taxes  except  by  a  legis- 
lative body  in  which  the  taxpayers  were  represented. 


MAGNA    CARTA  17 

We  have  only  to  refer  to  the  arguments  in  the  great 
constitutional  cases  before  the  courts  of  England  in 
the  seventeenth  century,  such  as  the  famous  case 
of  Impositions  in  the  reign  of  James  I.  and  the  still 
more  famous  case  of  Ship- Money  in  the  reign  of 
Charles  I.,  to  realize  how  much  the  people  relied 
upon  Magna  Carta  as  establishing  the  doctrine  that 
parhament  alone  could  impose  taxes. 

The  counsel  for  Bate  in  the  former  case  and  for 
Hampden  in  the  latter  case  may  not  have  appre- 
hended the  philosophical  theory  of  the  separation  of 
governmental  powers  elaborated  by  Montesquieu  in 
the  next  century,  and  they  may  not  have  contended 
that  taxation  was  essentially  a  legislative  function 
and,  therefore,  could  not  be  exercised  by  the  king;  but 
in  final  analysis  they  alfirmed  these  principles  when 
they  asserted  that  parhament  alone  could  impose 
taxes.  The  judgment  of  a  majority  of  the  court  in 
the  Ship-Money  case,  as  had  been  the  judgment  in 
the  case  of  Impositions,  was  in  favor  of  the  crown, 
but  the  appeal  to  the  country  cost  Charles  I.  his 
head  and  ultimately  resulted  in  vesting  in  parlia- 
ment the  exclusive  power  to  legislate  and  hence  to 
tax.  If  England  had  then  had  an  independent  ju- 
diciary charged  with  the  duty  of  enforcing  the  funda- 
mental law  of  the  land,  the  levying  of  the  taxes  in 
both  of  these  cases  would  have  been  held  contrary 
to  the  letter,  as  it  was  certainly  contrary  to  the  spirit, 
of  Magna  Carta. 

It  is  no  answer  to  say  that  the  parliament  of 
to-day  finds  its  prototype  not  in   []\o  old  common 


18  MAGNA    CARTA 

council  referred  to  in  Magna  Carta,  but  in  the 
parliament  of  1266,  nor  is  it  an  answer  to  say  that 
the  idea  of  taxation  in  its  abstract  form  is  essentially 
modern  and  was  quite  unknown  in  I2i5.  I  do  not 
suggest  that  the  people  of  England  in  I2i5  or  even 
in  1265  understood  the  virtues  of  the  representative 
system,  or  the  principles  of  taxation  or  of  the  separa- 
tion of  powers.  The  point  is  that  the  direct  conse- 
quence of  the  provisions  of  Magna  Carta  was  a 
parliament  based,  theoretically  at  least,  on  the  rep- 
resentative idea  as  well  as  on  the  principle  that 
there  could  be  no  legislation  without  the  consent  of 
parliament. 

The  most  famous  of  all  the  chapters  of  Magna 
Carta  and  the  most  important  and  far-reaching  from 
a  juridical  point  of  view  is  undoubtedly  the  thirty- 
ninth,  which  provides  that  "  no  freeman  shall  be 
taken  or  imprisoned  or  disseised  or  exiled  or  in  any 
way  destroyed,  nor  will  we  go  upon  him  nor  send 
upon  him,  except  by  the  lawful  judgment  of  his 
peers  or  by  the  law  of  the  land." 

The  substance  of  this  provision  as  to  "the  law  of 
the  land,"  or  its  equivalent  "due  process  of  law,"  is 
of  universal  application  throughout  the  United 
States  as  a  constitutional  limitation  upon  the  powers 
of  government,  and  it  is  to  be  found  not  only  in  the 
Constitution  of  the  United  States  but  in  the  constitu- 
tion of  every  state  of  the  Union.  It  is  now  firmly 
established  in  American  and  English  constitutional 
law,  and  it  is  familiar  knowledge,  that  the  terms  "the 
law  of  the  land "  and  "due  process  of  law "  are  exactly 


MAGNA    CARTA  19 

equivalent  in  meaning  and  in  legal  force  and  effect. 
The  earliest  use  of  the  phrase  "due  process  of  law" 
in  American  constitutions  seems  to  have  been  in 
the  fifth  amendment  to  the  Constitution  of  the 
United  States,  ratified  in  1791.  None  of  the  state 
constitutions  then  in  existence  contained  that  term, 
but  nearly  all  of  them  used  the  phrase  "the  law  of 
the  land."  The  plirase  "  due  process  of  law  "  will 
be  found  in  the  New  York  bill  of  rights  of  1787. 

Until  recent  years,  it  had  been  assumed  that  the 
term  "the  lawful  judgment  of  his  peers"  in  Magna 
Carta  meant  trial  by  jury  according  to  the  modern 
understanding  of  that  term,  and  that  the  term  "the 
law  of  the  land"  meant  laws  conforming  to  those 
fundamental  principles  of  justice  which  protect 
every  individual  in  the  full  enjoyment  of  life,  liberty 
and  property  secure  from  the  arbitrary  exercise  of 
the  powers  of  government.  That  is  still  the  technical 
legal  meaning  of  these  two  terms  both  in  England 
and  in  America,  although  their  practical  effect  and 
operation  are  different  with  us,  because  of  our 
system  of  written  constitutions  which  the  legislative 
branch  may  not  disregard  or  violate.  Both  of  these 
meanings,  however,  are  now  challenged  by  certain 
critics  as  being  without  foundation  in  either  the  pro- 
visions or  the  history  of  the  Great  Charter. 

Some  historians  contend  that  the  familiar  pro- 
vision of  Magna  Carta  could  not  have  meant 
trial  by  a  jury  of  twelve  and  a  unanimous  ver- 
dict, because  such  a  jury,  according  to  our  present 
knowledge,    did    not    exist    until    the    second    liaff 


20  MAGNA    CARTA 

of  the  fourteenth  century.  But  it  is  quite  im- 
material whether  the  exact  form  of  our  jury- 
trial  existed  in  England  in  i2i5,  or  when  the  Great 
Charter  was  subsequently  reissued  or  confirmed, 
provided  that  the  foundations  of  the  system  had 
then  been  laid.  It  is  sufficient  for  us  that  the  an- 
tecedents of  the  modern  jury  system  in  all  its 
three  forms  of  grand  jury,  criminal  jury  and  civil 
jury  existed  at  the  time  of  Magna  Carta  and  were 
preserved  by  it.  As  the  jury  system  developed, 
with  the  changes  inevitably  attending  all  such 
institutions  of  legal  procedure  and  machinery,  the 
form  for  the  time  being,  whatever  its  exact  nature, 
became  "the  lawful  judgment  of  his  peers"  within 
the  intent  and  meaning  of  the  Great  Charter.  In 
any  event,  the  latest  confirmations  of  that  instru- 
ment occurred  at  a  time  when  the  jury  system  as 
now  in  force  was  being  firmly  estabhshed.  It  is, 
therefore,  easy  to  understand  how  the  provision 
"the  lawful  judgment  of  his  peers"  in  the  course 
of  time  came  to  be  regarded  as  intended  to  guaran- 
tee the  common-law  jury  of  twelve  with  unanimity 
in  verdict. 

Thus  many,  if  not  most,  of  our  constitutional 
provisions  now  apply  to  conditions  not  at  all  con- 
templated by  their  framers  although  clearly  within 
the  principle  enunciated  and  the  spirit  of  the  lan- 
guage used.  Much  of  the  efficacy  of  our  federal 
and  state  bills  of  rights,  or  of  any  similar  provisions 
which  this  Convention  may  embody  in  the  new 
constitution,   would   be  practically   nullified   if  the 


MAGNA    CARTA  21 

language  used  were  to  be  interpreted  as  being  limited 
to  the  particular  conditions  existing  when  they  were 
adopted.  It  is  the  spirit  and  the  expanding  princi- 
ples of  constitutional  provisions  which  should  always 
control.     The  letter  killeth. 

A  charter  of  hberties,  a  bill  of  rights,  or  a  constitu- 
tion is  not  an  ephemeral  enactment  designed  to  meet 
only  the  conditions  existing  at  the  time  of  its  adop- 
tion. It  embodies  and  perpetuates  permanent  prin- 
ciples. It  is  designed  to  endure  "forever,"  in  the 
language  of  Magna  Carta,  and  "to  approach  immor- 
tality as  nearly  as  human  institutions  can  approach 
it,"  in  the  lofty  phrase  of  Marshall,  the  great  Chief 
Justice  of  the  United  States.  Under  any  other  rule 
of  interpretation,  Magna  Carta  would  have  become 
antiquated  long  before  the  discovery  of  America. 

By  the  phrase  "the  law  of  the  land,"  in  chapter 
thirty-nine,  the  fundamental  principles  and  axioms 
of  the  existing  law  were  perpetuated.  Exactly 
what  those  fundamental  principles  and  axioms  were 
then  understood  to  be  is  not  now  capable  of  accurate 
exposition.  The  judges  and  the  people  of  those  days 
certainly  had  some  definite  ideas  of  reasonably  just 
and  fixed  rules  of  conduct  adequate  for  the  solution 
of  the  simple  questions  arising  in  the  controversies 
then  being  submitted  for  adjudication.  Had  the 
judges  been  pressed  for  a  comprehensive  or  philo- 
sophical definition  of  "the  law  of  the  land,"  they 
might  have  said  that  tliey  would  not  attempt  to 
define  the  term  any  more  than  they  would  attempt 
to  define  justice  itself,  and   that,  as  the  Supreme 


22  MAGNA    CARTA 

Court  of  the  United  States  declared  only  a  few  years 
ago,  it  is  better  to  ascertain  the  intent  of  such  an 
important  phrase  in  a  great  constitutional  document 
by  the  gradual  process  of  judicial  inclusion  and 
exclusion  as  practical  experience  may  dictate  and  as 
the  cases  presented  for  decision  may  require;  in 
other  words,  that  their  decisions  would  in  time 
sufficiently  declare  and  perpetuate  the  principles  of 
the  law  of 

"  A  land  of  settled  government, 
A  land  of  just  and  old  renown. 
Where  freedom  slowly  broadens  down 
From  precedent  to  precedent." 

The  phrase  "the  law  of  the  land,"  as  used  in. 
Magna  Carta,  must  have  been  intended  at  the  time 
to  include  procedure  as  well  as  substantive  law,  but 
the  term  "due  process  of  law,"  now  its  current 
equivalent,  originally  related  only  to  procedure. 
A  very  early,  if  not  the  earliest,  use  of  the  term 
"due  process  of  law"  will  be  found  in  a  statute  of  the 
year  i354,  28  Edward  III.,  in  which  it  was  provided 
that  no  person  should  be  condemned  without  being 
first  brought  to  answer  by  due  process  of  the  law, 
the  exact  wording  in  the  quaint  Norman-French  of 
the  day  being  ''saunz  estre  mesne  en  respons  par  due 
proces  de  lei.'"'  As  at  the  same  time  the  Great 
Charter  was  being  expressly  confirmed  "to  be  kept 
and  maintained  in  all  points,"  the  provision  in 
regard  to  due  proces  de  lei  in  the  act  of  i354  was 
undoubtedly  intended  to  be  supplemental  to  the 
provisions  of  the  Great  Charter  and  to  apply  only 


MAGNA    CARTA  23 

to  persons  being  brought  to  trial  in  a  court  of  justice. 
It  is  true  that  in  the  seventeenth  century  Lord  Coke 
used  the  phrase  "due  process  of  law"  as  the  equiva- 
lent of  "the  law  of  the  land,"  but  in  the  contempo- 
raneous Petition  of  Right  of  16128  mention  is  made 
specifically  of  the  "Great  Charter  of  the  Liberties 
of  England"  and  its  provision  as  to  "the  law  of  the 
land,"  and  reference  is  made  separately  to  the  act 
of  28  Edward  IIL  and  its  provision  that  no  man 
should  be  prosecuted  "without  being  brought  to 
answere  by  due  process  of  lawe." 

The  same  distinction  in  the  use  of  these  terms  will 
be  found  in  the  history  of  the  Plymouth  colony  as 
early  as  i636  and  also  in  the  early  history  of  the  state 
of  New  York.  The  New  York  charter  of  liberties 
and  privileges  of  i683  speaks  of  "being  brought  to 
answere  by  due  course  of  law,"  the  words  evidently 
being  taken  either  from  the  act  of  Edward  IIL  of 
i354,  or  from  the  Petition  of  Right  of  1628.  The 
New  York  constitution  of  1777  used  the  term  "the 
law  of  the  land"  but  did  not  use  the  term  "due 
process  of  law."  In  the  New  York  bill  of  rights  of 
1787,  we  find  the  phrases  "the  law  of  the  land," 
"due  process  of  law"  and  "due  course  of  law," 
and  in  one  section  the  phrase  "due  process  of  law 
according  to  the  law  of  the  land."  Roth  terms, 
"the  law  of  the  land"  and  "due  process  of  law," 
are  used  with  evidently  the  same  meaning  in  the 
present  constitution  of  the  state  of  New  York, 
that  is  to  say,  "the  law  of  the  land"  is  used  in 
section  i   of  .\rticlc  I.   and  "due  process  of  law" 


24  MAGNA    CARTA 

in  section  6.  The  separate  history  of  each  section, 
the  former  first  appearing  in  the  constitution  of 
1777  and  the  latter  in  the  constitution  of  1821, 
will  account  for  the  difference  in  terminology. 

It  would  be  interesting  to  trace  the  varying  uses 
of  these  terms  in  our  forty-eight  state  constitutions, 
but  that  must  be  left  for  some  other  occasion.  A 
majority  of  the  state  constitutions,  including  most 
of  the  recent  constitutions,  now  contain  the  term 
"due  process  of  law."  As  that  term  is  the  one  used 
in  the  fourteenth  amendment,  which  is  apphcable 
to  all  the  states,  it  might  be  preferable,  for  the  sake 
of  uniformity  and  certainty,  to  adopt  that  form  as 
less  hkely  to  confuse.  Moreover,  the  phrase  "due 
process  of  law"  lends  itself  readily  to  a  more  compre- 
hensive and  inclusive  definition  if  we  define  the  word 
"due"  to  mean  just  and  appropriate  and  the  word 
"process"  to  mean  substantive  provision  as  well  as 
procedure. 

Finally,  it  may  be  of  interest  to  notice  the  sanction 
and  security  devised  for  enforcing  the  covenants  of 
Magna  Carta.  A  body  or  tribunal  of  twenty-five 
barons,  called  executors,  was  created  by  chapter 
sixty-one,  who  were  to  "be  bound  with  all  their 
might,  to  observe  and  hold,  and  cause  to  be  observed, 
the  peace  and  liberties  we  have  granted  and  con- 
firmed to  them,"  and  who  were  to  have  power  to 
compel  the  king  himself,  even  by  force,  to  keep  the 
promises  he  had  made.  The  clause  providing  this 
security  or  legal  sanction  was  crude,  but  it  was  not 
necessarily  an  impracticable  innovation.     Although 


MAGNA    CARTA  25 

the  plan  utterly  failed,  it  remained  of  immense 
value  in  principle.  That  principle  established  the 
right  of  the  subjects  to  compel  the  king  of  England 
to  obey  a  body  of  fixed  laws  outside  and  beyond 
his  will;  it  justified  revolution  for  just  cause,  and  it 
inspired  our  forefathers  in  their  struggle  against 
George  III.  The  influence  of  this  idea  upon  public 
sentiment  as  justifying  revolution,  particularly 
during  the  seventeenth  and  eighteenth  centuries, 
cannot  well  be  over-estimated.  The  ineffectiveness  of 
this  provision  of  Magna  Carta  served  also  to  demon- 
strate the  futility  of  such  a  tribunal  and  security, 
and  to  lead  the  English  people  to  look  thereafter 
solely  to  the  courts  of  justice  and  to  parliament  for 
the  protection  of  their  rights  and  hberties.  The 
founders  of  our  own  republican  governments  may 
have  been  warned  by  the  failure  of  this  sanction 
that  it  would  be  unwise  to  create  any  political  body 
with  power  to  enforce  constitutional  provisions,  and 
it  may  have  been  for  this  reason  that  they  left  the 
enforcement  of  constitutional  limitations  and  the 
protection  of  the  individual  and  minorities  to  an 
independent  non-political  forum  composed  of  impar- 
tial judges  learned  in  the  law  and  meaning  "to 
observe  it  well,"  according  to  the  spirit  of  Magna 
Carta. 

In  closing  his  great  commentaries  on  the  Constitu- 
tion of  the  United  States,  Mr.  Justice  Story  admon- 
ished the  American  people  that,  although  tlie  whole 
structure  of  our  constitutional  liberty  was  erected 
by  architects  of  consummate  skill  and  fidelity,  with 


26  MAGNA    CARTA 

its  defences  impregnable  from  without,  it  might 
nevertheless  perish  in  an  hour  by  the  folly  or  corrup- 
tion or  neghgence  of  its  only  keepers,  the  people.  It 
cannot,  indeed,  be  too  often  declared  that,  if  consti- 
tutional government  and  fundamental  rights  are  to 
endure,  they  must  be  maintained  and  preserved  by 
competent  leaders  and  representatives  of  the  people 
constantly  teaching  the  value  of  the  traditions  of 
Magna  Carta  and  the  necessity  of  adhering  to  consti- 
tutional principles  and  observing  constitutional  mo- 
rality. The  members  of  this  Convention  are  not 
likely  to  disregard  the  living  spirit  of  the  Great 
Charter  of  English  Liberties  and  its  enduring  value 
to  Americans.  It  was  Lincoln  who  said  that "  as  a  na- 
tion of  freemen  we  must  live  through  all  time,  or  die 
by  suicide."  But  we  shall  perpetuate  free  government 
and  civil  liberty  only  as  we  adhere  to  two  essential 
conditions:  the  one,  that  our  fundamental  rights 
shall  continue  to  be  inviolable  by  the  state,  the 
other,  that  they  shall  be  equal.  "If  not  inviolable, 
they  are  not  rights,  but  only  enjoyments  on  suffer- 
ance; if  not  equal,  they  are  but  the  privileges  of  a 
class,  whatever  that  class  may  be."^ 

'  Edward  J.  Phelps,  Orations  and  Essays  (1901),  p.  127. 


THE   MAYFLOWER  COMPACT^ 

WHEREVER  Americans  gather,  at  home  or 
abroad,  those  who  can  claim  the  proud 
heritage  of  descent  from  the  Pilgrims  on  the  May- 
flower are  accustomed  annually  to  join  in  thanks- 
giving for  all  that  they  owe  to  their  ancestors.  The 
spirit  which  prompts  these  celebrations  is  singularly 
wholesome,  and  indeed  holy.  Among  the  natural 
instincts  of  the  heart,  common  to  all  races,  is  a 
longing  for  communion  with  the  past,  which  mani- 
fests itself  in  the  worship  of  ancestors.  That  this 
spirit  of  reverence  has  been  from  the  earliest  ages 
a  most  powerful  religious  and  patriotic  force  is  a 
fact  familiar  to  us  in  the  history  of  the  Egyptians, 
the  Greeks  and  the  Romans.  We  readily  recall 
the  beautiful  ceremonial  of  pagan  Rome  on  the  dies 
parentales,  when  violets  and  roses  and  wine,  oil  and 
milk  were  offered  and  aves  were  chanted  to  the  spirits 
of  their  dead. 

An  impressive  example  of  the  survival  of  this 
instinct  in  modern  times  is  afforded  by  the  Japa- 
nese, who  daily,  at  innumerable  household  shrines 
and  public  temples  erected  to  Shinto,  worship  their 

^  Remarks  responding  to  the  toast,  "The  Mayflower  Compact,"  at 
the  twenty-first  annual  banquet  of  the  Society  of  Mayflower  Descendants 
in  the  State  of  New  York,  held  at  the  Hotel  St.  Regis,  New  York, 
November  23,  19 15. 


28  MAYFLOWER    COMPACT 

ancestors  as  the  gods  of  the  home  and  of  the  nation. 
When,  twenty-years  ago,  Japan  so  easily  defeated 
the  Chinese  Empire  with  ten  times  the  population  of 
Japan,  the  surprise  and  marvel  of  the  world  impelled 
one  of  the  most  brilliant  writers  of  our  generation 
to  seek  the  source  of  the  fortitude,  the  indomitable 
spirit  and  the  military  valor  of  the  Japanese.  He 
did  not  expect  to  find  it  in  their  form  of  government 
or  in  their  laws,  for  he  realized  the  great  truth  that 
mere  forms  of  government  and  laws  possess  no 
magical  or  supernatural  virtue  and  are  of  little 
moment  in  nations  in  comparison  with  the  moral 
character  of  their  leaders  and  their  people.  He  dis- 
covered, as  he  believed,  that  the  secret  of  the  civil 
and  martial  power  of  the  Japanese  and  the  source 
of  their  moral  energy  and  virtue  —  I  use  virtue  in 
the  Latin  sense  of  valor  —  lay  in  the  vital  and  all- 
pervading  worship  of  their  ancestors,  based  upon 
the  deep-rooted  belief  that  all  things  are  determined 
by  the  dead.  He  found  that  this  homage  excited 
at  once  the  deepest  emotion  and  the  most  powerful 
inspiration  of  the  race,  shaping  their  national  char- 
acter, directing  their  national  life,  teaching  them 
reverence,  obedience,  self-restraint,  temperance,  loy- 
alty, courage,  devotion  and  sacrifice,  and  making 
them  ever  conscious  of  the  prodigious  debt  the 
present  owes  to  the  past,  as  well  as  keenly  sensible 
of  the  duty  of  love  and  gratitude  to  the  departed  for 
their  labors  and  suffering.  "They,"  the  dead,  he 
eloquently  wrote,  "created  all  that  we  call  civiliza- 
tion, —  trusting    us    to    correct   such    mistakes    as 


MAYFLOWER    COMPACT  29 

they  could  not  liolp  making.  The  sum  of  their 
toil  is  incalculable;  and  all  that  they  have  given  us 
ought  surely  to  be  very  sacred,  very  precious,  if 
only  by  reason  of  the  infinite  pain  and  thouglit  which 
it  cost."  And  then  he  added,  "Yet  what  Occidental 
dreams  of  saying  daily,  hke  the  Shinto  believer: 
'  Ye  forefathers  of  the  generations,  and  of  our  families, 
and  of  our  kindred,  —  unto  you,  the  founders  of  our 
homes,  we  utter  the  gladness  of  our  thanks'?''  ^ 

In  the  reverential  spirit  so  beautifully  expressed 
by  this  Japanese  prayer,  I  venture  upon  a  neces- 
sarily brief  and  imperfect  review  of  a  subject  of 
transcendent  and  enduring  interest  to  Americans  — 
the  debt  that  American  constitutional  government, 
under  which  we  enjoy  the  blessings  of  civil  and 
religious  liberty  and  of  just  and  equal  laws,  ow^es  to 
your  ancestors  of  the  Mayflower. 

In  these  days  of  superlative  comfort  and  afflu- 
ence, it  is  difficult  for  us  assembled  in  this  palatial 
hall,  feasting  better  tlian  the  Caesars  feasted  and 
served  as  not  even  princes  were  served  three  hundred 
years  ago  —  difficult,  if  not  impossible,  is  it  to  carry 
our  minds  from  this  gorgeous  and  almost  oppressive 
luxury  back  through  the  centuries  to  November, 
1620,  to  the  Mayflower  covered  with  snow  and  ice 
and  buff'eted  by  fierce  winter  winds  off  the  bleak 
and  desolate  coast  of  Cape  Cod.  Equally  difficult 
is  it  to  picture  to  ourselves  and  in  imagination  to 
breathe  the  air  of  that  first  American  constitutional 
convention,  in  the  cramped  and  chilling  cabin  of 

^  Lufcadio  Ilcarn,  Kokoro,  pp.  289-290. 


30  MAYFLOWER    COMPACT 

the  Mayflower,  when  the  Pilgrim  Fathers  were 
assisting,  as  Bancroft  says,  at  "the  birth  of  popular 
constitutional  liberty,"  and  were  discussing  the  pro- 
visions of  what  has  since  been  called  the  first  written 
constitution  ever  framed  by  a  people  for  their  own 
government  from  the  time  history  began  to  record 
human  politics  and  human  successes  and  failures. 
I  need  not  stop  to  read  the  contents  of  the  com- 
pleted draft  of  that  constitution,  conceived  in  the 
then  vague  prompting,  which  one  hundred  and 
fifty-six  years  later  was  to  be  proclaimed  in  our 
Declaration  of  Independence  as  a  self-evident  truth, 
that  all  governments  must  derive  "their  just  powers 
from  the  consent  of  the  governed."  Nor  shall  I 
read  the  names  of  the  forty-one  immortals  who 
executed  that  compact  in  order  to  evidence  their 
covenant  of  due  consent  and  promise  of  obedience 
to  its  provisions  and  spirit.  Surely,  if  there  be  one 
constitutional  document  which  should  be  familiar 
to  all  Americans,  and  particularly  to  the  descendants 
of  the  Pilgrims,  it  is  the  Mayflower  Compact  of 
November  21,  1620.^ 

'  The  original  manuscript  of  the  Mayflower  Compact  has  been  lost 
or  destroyed.  The  text,  as  preserved  by  Governor  Bradford  in  his  annals 
entitled  "Of  PUmoth  Plantation,"  is  as  follows: 

"In  ye  name  of  God,  Amen.  We  whose  names  are  mider-writen,  the 
loyall  subjects  of  our  dread  soveraigne  Lord,  King  James,  by  ye  grace  of 
God,  of  Great  Britaine,  Franc,  &  Ireland  king,  defender  of  y^  faith,  &c., 
haveing  undertaken,  for  ye  glorie  of  God,  and  advancemente  of  ye  Christian 
faith,  and  honour  of  our  king  &  countrie,  a  voyage  to  plant  ye  first 
colonic  in  ye  Northerne  parts  of  Virginia,  doe  by  those  presents  solemnly 
&  mutualy  in  ye  presence  of  God,  and  one  of  another,  covenant  &  combine 
our  selves  togeather  into  a  civUl  body  politick,  for  our  better  ordering  & 
preservation  &  furtherance  of  ye  ends  aforesaid;  and  by  vertue  hearof  to 


MAYFLOWER    COMPACT  31 

Many  of  us  believe  that  the  compact  thus  entered 
into  was  the  prototype  of  the  Constitution  of  the 
United  States,  that  the  government  it  estabhshed 
was  the  beginning  of  the  repubhcan  form  of  govern- 
ment now  guaranteed  ahke  to  nation  and  state,  and 
that  the  covenant  it  contained  for  just  and  equal  laws 
was  the  germ  from  which  has  since  developed  our 
whole  system  of  constitutional  jurisprudence.  This 
covenant  reads:  "We.  .  .  doe  by  these  presents  sol- 
emnly &  mutualy  in  y«  presence  of  God,  and  one  of 
another,  covenant  &  combine  our  selves  togeather 
into  a  civill  body  politick,  for  our  better  ordering  & 
preservation  &  furtherance  of  y^  ends  aforesaid ;  and 
by  vertue  hearof  to  enacte,  constitute,  and  frame  such 
just  &  equall  lawes,  ordinances,  acts,  constitutions,  & 
offices,  from  time  to  time,  as  shall  be  thought  most 
meete  &  convenient  for  y^  generall  good  of  y^  Col- 
onic, unto  which  we  promise  all  due  submission 
and  obedience."  Surely,  this  simple,  comprehensive 
and  lofty  language,  in  the  style  of  the  Bible  open 
before  the  Pilgrims,  embodies  the  true  and  invigorat- 
ing spirit  of  our  constitutional  polity  as  it  flourishes 
to-day. 

enacte,  constitute,  and  frame  such  just  &  equall  lawes,  ordinances,  acts, 
constitutions,  &  offices,  from  time  to  time,  as  shall  be  thought  most  nu-ete 
&  convenient  for  ye  generall  good  of  y^  Colonic,  unto  which  we  promise 
all  due  submission  and  obedience.  In  witnes  wherof  we  have  hereunder 
subscribed  our  names  at  Cap-Codd  ye  ii.  of  November,  in  y*'  year  of  ye 
raigne  of  our  soveraigne  lord.  King  James,  of  England,  France.  &  Ireland 
ye  eighteenth,  and  of  Scotland  ye  fiflie  fourth.  An":  Dom.  ifijo." 
Printed  in  the  Collections  of  the  Mas.sachusetts  Historical  Society,  /|th 
series,  vol.  Ill,  pp.  89-90  See  also  the  text  in  Bradford's  History  of 
Plymouth  Plantation,  ed.  W.  T.  Davis  (1908),  p.  107. 


32  MAYFLOWER    COMPACT 

In  order  to  appreciate  the  political  greatness  and 
the  moral  grandeur  of  the  work  of  the  Pilgrims, 
we  should  recall  that,  when  the  Mayflower  Compact 
was  framed,  in  no  part  of  the  world  did  there  exist 
a  government  of  just  and  equal  laws,  and  that  in  no 
country  was  there  real  religious  liberty  or  the  com- 
plete separation  of  Church  and  State. 

In  fact,  the  great  and  now  fundamental  principle 
of  the  separation  of  Church  and  State  was  first 
made  a  living  reality  by  the  Pilgrims,  although,  in 
theory  at  least,  it  antedated  the  voyage  of  the 
Mayflower.  It  was  the  essence  of  their  holy  cove- 
nant of  congregation  entered  into  years  before.  And 
to  the  Pilgrims  chiefly  are  due  the  credit  and  honor 
of  incorporating  this  principle  into  Anglo-American 
polity.  A  wide  gulf  separated  the  Pilgrims  from  the 
Puritans  in  this  respect.  The  Pflgrims,  first  known 
in  England  as  the  Separatists  and  Brownists — hated 
alike  by  Puritan  and  Cavalier  —  advocated  religious 
liberty  and  the  complete  separation  of  Church  and 
State.  The  Puritans,  however,  when  they  secured 
power  in  England  and  later  in  New  England,  were 
intolerant  in  religion  and  opposed  both  to  religious 
liberty  and  to  the  separation  of  Church  and  State. 
They  were  determined  that  the  state  should  domi- 
nate in  religious  as  well  as  in  civil  afi^airs  and  that 
it  should  regulate  the  rehgion  of  all;  in  truth,  they 
sought  to  impose  a  dominant  theocracy  as  com- 
pletely as  Henry  VIII.  and  Ehzabeth  were  deter- 
mined to  have  a  state  church  under  their  own  spiritual 
supremacy  and  to  abohsh  all  "diversity  of  opinions," 


MAYFLOWER    COMPACT  33 

if  necessary  by  rack,  fire  and  the  scaffold.  The 
Pilgrim,  personifying  him  as  you  love  to  in  the 
lofty  and  generous  spirit  of  Robinson  at  Leyden, 
believed  in  religious  freedom,  or,  as  it  is  differently 
phrased,  in  liberty  of  conscience;  the  Puritan  was 
determined  that  all  sliould  be  coerced  by  legislation 
and  the  sword  to  conform  to  his  religious  views  as 
the  only  true  faith.  Althougli  the  Puritan  theoc- 
racy found  its  most  complete  development  and 
tyranny  in  Massachusetts,  the  colony  of  Plymouth 
remained  liberal  and  tolerant.  Notwithstanding 
the  terrible  record  of  sanguinary  persecutions  among 
other  religious  denominations  of  that  age,  no 
instance  is  recorded  of  religious  persecution  by  the 
Pilgrims  or  in  the  Plymouth  colony.^  You  will 
recall  that  the  famous  Pilgrim  captain,  Myles 
Standish,  never  joined  the  Plymouth  church,  that 
no  witches  were  ever  burned  in  Plymouth,  and  that 
when  a  malicious  woman  accused  a  neighbor  of 
witchcraft,  she  was  promptly  convicted  of  slander 
and  thereupon  fined  and  publicly  whipped.  The  ex- 
cesses and  fury  of  religious  persecution  by  Protestants 
and  Catholics  alike  were  the  products  of  the  fierce, 
intolerant  and  bhnd  spirit  of  that  age.  We  should 
judge  them  not  by  the  standards  of  the  twentieth 
century,  but  by  those  of  tlic  sixteenth  and  seven- 
teenth centuries,  and  must  not  overlook   the  fact 

1  The  legislation 'against  the  Quakers  as  cnfcirccd  in  the  Plymouth 
colony  seems  to  have  been  essentially  political.  The  records,  so  far  as  we 
have  Ihcrn,  indicate  that  the  Quakers  were  proceeded  against  l)ccau'>(>  of 
their  attempts  to  disturb  tiie  peace  and  overthrow  established  law  and 
order,  and  not  because  of  their  religious  beliefs. 


34  MAYFLOWER    COMPACT 

that  in  many  cases  these  persecutions  were  as  much 
poHtical  as  they  were  rehgious. 

In  the  history  of  New  England  the  Pilgrim  is 
often  confused  with  the  Puritan,  undoubtedly  because 
the  Puritan  soon  dominated  and  ultimately  absorbed 
the  Pilgrim.  Nevertheless,  the  differences  between 
them  on  this  question  of  religious  tolerance  and  the 
separation  of  Church  and  State  were  implacable, 
to  adopt  the  word  of  a  great  American  historian. 
Yet,  in  differentiating  between  Pilgrim  and  Puritan 
and  in  recalling  the  facts  as  to  the  origin  of  religious 
freedom  and  the  separation  of  Church  and  State, 
the  greatest  of  all  the  blessings  we  now  enjoy  —  in 
giving  most  of  the  glory  to  the  Pilgrims,  notwith- 
standing the  claims  of  Catholic  Maryland  —  I  am 
not  at  all  unmindful  that  in  religion  and  in  politics 
the  Pilgrim  and  the  Puritan  had  many  views  in 
common,  that  our  debt  to  both  is  quite  inseparable, 
and  that  our  gratitude  to  them  should  be  eternal. 

It  is  certainly  impossible  to  exaggerate  the  debt 
we  owe  to  the  Puritan  spirit  —  fierce,  indomitable 
and  undaunted,  even  if  intolerant,  for  it  was  that 
spirit  which  cemented  the  foundations  of  our  nation. 
It  was  the  Puritan  spirit  that  gave  to  England  her 
noblest  figures  and  her  most  inspiring  traditions  of 
battlefields.  Towering  above  all  other  English- 
men is  the  lofty  figure  of  the  Puritan  Cromwell, 
and  second  only  to  him  are  the  Puritans  Hampden, 
Pym,  Selden,  Milton,  Vane,  Hale.  Hampden  — 
the  highest  type  of  English  gentleman,  with  a 
nobility  and  fearlessness  of  character,  self-control, 


MAYFLOWER    COMPACT  35 

soundness  of  judgment  and  perfect  rectitude  of 
intention,  to  which,  as  Macaulay  declared,  "the 
history  of  revolutions  furnishes  no  parallel  or  fur- 
nishes a  parallel  in  Washington  alone."  If  to-day 
England  is  to  preserve  her  empire,  upon  which  she 
boasts  the  sun  never  sets,  she  must  appeal  to  the 
energy  and  fortitude  and  courage  of  the  Puritan. 
She  must  invoke  the  spirit  of  Oliver  Cromwell, 
whose  mighty  arm  made  the  name  of  England 
terrible  to  her  enemies  and  laid  the  foundations  of 
her  empire,  who  led  her  to  conquest,  who  never 
fought  a  battle  without  gaining  it,  whose  soldiers' 
backs  no  enemy  ever  saw,  who  humbled  Spain  on 
the  land  and  Holland  on  the  sea,  and  who  left  a 
tradition  of  mihtary  valor  which  is  now^  the  in- 
spiration of  the  splendid  courage,  heroism  and 
sacrifice  of  England's  soldiers  on  the  continent  of 
Europe. 

■  A  most  important  aspect  of  the  Pilgrims'  contribu- 
tion to  our  political  institutions  is  the  provision  for 
just  and  equal  laws  contained  in  the^  Mayflower 
Compact,  for,  as  I  have  already  suggested,  in  that 
provision  is  embodied  the  essence  of  our  whole 
constitutional  system.  It  has  become  a  truism  that 
the  characteristic  of  the  American  system  of  consti- 
tutional government  is  equality  before  the  law.  We 
Americans  accept  this  doctrine  as  of  course.  But 
we  should  appreciate  that  civil  equality  or  equality 
before  the  law  was  practically  unknown  in  Europe 
when  the  Mayflower  Compact  was  written.  In  this 
country  its  development  sprang  in  great  measure 


36  MAYFLOWER    COMPACT 

gradually  from  the  seed  first  sown  by  the  Pilgrims. 
Neither  the  phrase  "  equality  before  the  law,"  so  famil- 
iar to  us  as  expressing  a  fundamental  and  self-evident 
truth,  nor  the  term  "  the  equal  protection  of  the  laws," 
now  contained  in  the  fourteenth  amendment,  is  to  be 
found  in  the  English  common  law.  Nor  was  either 
term,  or  any  equivalent,  in  legal  use  in  America  at  the 
time  of  the  adoption  of  the  Constitution  of  the  United 
States.  Indeed,  the  plirase  "equality  before  the  law " 
is  said  to  be  a  modern  translation  from  the  French. 
Nevertheless,  equality  in  duty,  in  right,  in  burden  and 
in  protection  is  the  thought  which  has  run  through  all 
our  constitutional  enactments  from  the  beginning. 

The  Pilgrim  Fathers  perceived,  long  before  it 
was  generally  appreciated,  that  equal  laws  might 
fall  far  short  of  political  justice  and  liberty,  and 
hence  they  provided  for  "just  and  equal  laws." 
They  realized,  perhaps  indistinctly,  that  equality 
in  itself,  without  other  elements,  is  not  sufRcient 
to  guarantee  justice,  and  that,  under  a  law  which 
is  merely  equal,  all  may  be  equally  oppressed,  equally 
degraded,  equally  enslaved.  They  well  knew  that 
equality  is  one  of  the  pervading  features  of  most 
despotisms,  and  that  a  law  may  be  equal  and  yet 
be  grossly  arbitrary,  tyrannical  and  unjust.  Ob- 
viously, a  law  confiscating  all  property  of  a  certain 
kind  would  be  equal  if  it  applied  to  all  having  that 
particular  kind  of  property.  The  laws  of  England 
then  in  force  providing  for  one  form  of  worship, 
"for  abolishing  diversity  of  opinions,"  as  the  title 
of  the  act  of  3i  Henry  VIII.  recited,  or  compelling 


MAYFLOWER    COMPACT  37 

all  to  attend  the  same  church  and  to  take  the  same 
oath  of  religious  supremacy  and  the  sacraments  of 
the  same  religious  denomination,  were  all  equal 
laws,  because  they  applied  to  every  one,  no  matter 
what  his  conscience  might  dictate.  In  the  cabin  of 
the  Mayflower,  the  Pilgrim  Fathers  seem  to  have 
had  a  vision  revealing  to  them  the  fundamental  and 
essential  political  truth  that  equality  is  but  an  attri- 
bute of  the  liberty  they  were  then  seeking  at 
the  peril  of  their  lives  and  the  sacrifice  of  their 
fortunes,  and  that  true  liberty  requires  just  as  well 
as  equal  laws.  To  repeat,  it  was  the  Pilgrims  who 
first  sowed  in  our  soil  the  seed  of  just  and  equal 
laws,  and  that  seed  has  grown  into  the  fixed  rule 
of  the  American  constitutional  system,  a  rule  which 
has  spread  tiirough  all  our  political  and  civil  rights 
and  duties  until  it  reaches,  pervades,  unites  and 
invigorates  the  whole  body  politic. 

The  history  of  the  Plymouth  colony  from  i6r>o 
until  its  absorption  by  the  colony  of  Massachusetts 
in  1 69 1,  teaches  us  many  lessons  in  political  plii- 
losophy.  There  are  two  which  I  desire  to  recall  to 
you  to-night:  one  as  to  the  right  to  private  property, 
the  other  as  to  pure  democracy. 

The  Pilgrims  began  government  under  the  May- 
flower Compact  with  a  system  of  communism  or 
common  property.  The  experiment  almost  wrecked 
the  colony.  As  early  as  iG^S,  they  had  to  discard 
it  and  restore  the  old  law  of  individual  property  witli 
its  inducement  and  incentive  to  personal  cfl'ort.  AU 
who  now  urge  communism  in  one  form  or  another, 


38  MAYFLOWER    COMPACT 

often  in  disguise,  might  profitably  study  the  experience 
of  Plymouth,  which  followed  a  similarly  unfortunate 
and  disastrous  experiment  in  Virginia.  History  often 
teaches  men  in  vain.  Governor  Bradford's  account 
of  this  early  experiment  in  communism  in  his  annals 
of  "Plimoth  Plantation"  is  extremely  interesting. 
The  book  is  rich  in  political  principles  as  true  to- 
day as  they  were  three  hundred  years  ago.  After 
showing  that  the  communal  system  was  a  complete 
failure  and  that  as  soon  as  it  was  abandoned  and  a 
parcel  of  land  was  assigned  in  severalty  to  each 
family,  those  who  had  previously  refused  to  work 
became  "very  industrious,"  even  the  women  going 
"willingly  into  y^  feild"  taking  "their  litle-ons 
with  them  to  set  corne,  which  before  would  aledg 
weaknes,  and  inabilitie,"  Bradford  proceeds  as 
follows: 

"The  experience  that  was  had  in  this  coiiione 
course  and  condition,  tried  sundrie  years,  and  that 
amongst  godly  and  sober  men,  may  well  evince 
the  vanitie  of  that  conceite  of  Platos  &  other 
ancients,  applauded  by  some  of  later  times ;  —  that 
ye  taking  away  of  propertie,  and  bringing  in  coiiiu- 
nitie  into  a  comone  wealth,  would  make  them 
happy  and  florishing;  as  if  they  were  wiser  then 
God.  For  this  comunitie  (so  farr  as  it  was)  was 
found  to  breed  much  confusion  &  discontent,  and 
retard  much  imploymet  that  would  have  been  to 
their  benefite  and  comforte.  For  y^  yong-men  that 
were  most  able  and  fitte  for  labour  &  service  did 
repine  that  they  should  spend  their  time  &  streingth 


MAYFLOWER    COMPACT  39 

to  worke  for  other  mens  wives  and  cliildren,  with 
out  any  recompence.  The  strong,  or  man  of  parts, 
had  no  more  in  devission  of  victails  &  cloaths,  then 
he  that  was  weake  and  not  able  to  doe  a  quarter  y^ 
other  could;  this  was  thought  injuestice.  The  aged 
and  graver  men  to  be  ranked  and  equalised  in 
labours,  and  victails,  cloaths,  &c.,  with  y^  meaner 
&  yonger  sorte,  thought  it  some  indignite  &  disrespect 
unto  them.  .  .  .  Let  none  objecte  this  is  men's 
corruption,  and  nothing  to  y^  course  it  selfe.  I 
answer,  seeing  all  men  have  this  corruption  in 
them,  God  in  his  wisdome  saw  another  course  fiter 
for  them."  ^ 

Although  the  colony  of  Plymouth  began  as  a  pure 
democracy  under  which  all  the  men  were  convened 
to  decide  executive  and  judicial  questions,  the  in- 
crease of  population  and  its  diffusion  over  a  wider 
territory  necessarily  led  to  the  transaction  of  official 
business  through  chosen  representatives.  The  repre- 
sentative system  was  thus  established  by  the  Pil- 
grims in  New  England  perhaps  more  firmly  than 
elsewhere,  and  it  became  the  cardinal  principle  of 
whatever  efficiency,  strength  and  stability  our  repub- 
lican governments  now  have.  This  system  is  men- 
aced by  the  enthusiasm  for  change  and  by  the  fads 
of  recent  years,  such  as  the  initiative,  the  referen- 
dum, the  recall  and  direct  primaries.  In  these  polit- 
ical nostrums  has  been  revived  the  crude  notion 
that  the  masses,  inexperienced  as  they  are  in  the 

'  Collections  of  the  Massachusetts  Historical  Society,  4th  series,  vol.  Ill, 
pp. i34-i36. 


40  MAYFLOWER    COMPACT 

difTicult  and  complex  problems  of  government,  are 
instinctively  better  qualified  to  guide  than  the  edu- 
cated few  who  are  trained,  instructed  and  com- 
petent, and  who,  acting  as  the  representatives 
of  all,  are  bound  in  good  conscience  and  sound 
policy  to  consider  and  protect  the  rights  of  the 
minority,  of  the  individual,  of  the  humble  and  weak, 
against  the  arbitrary  will  or  selfish  interest  or  prej- 
udice of  the  majority. 

There  is  no  time  to-night,  even  if  your  patience 
would  bear  with  me  longer,  to  trace  the  growth  of 
the  political  principles  which  we  find  in  the  history 
of  the  Plymouth  colony  and  underlying  the  experi- 
ment in  republican  government  there  initiated  under 
the  Mayflower  Compact.  If  the  tree  is  to  be  judged 
by  its  fruit,  the  framing  of  that  compact  in  1620  was 
one  of  the  most  important  events  in  the  history  of 
the  American  people,  and  the  document  itself  is  one 
of  the  most  interesting  and  inspiring  of  American 
constitutional  documents.  But  I  feel  that  I  may 
appropriately  suggest  to  you  questions  which  are  of 
immediate  and  urgent  concern  to  us  all,  and  they  are 
whether  the  quickening  and  stirring  message  of  the 
Mayflower  has  really  endured  —  whether  the  sterling 
qualities  of  the  Pilgrim  and  the  Puritan  have  sur- 
vived —  whether  the  descendants  of  the  Pilgrims 
have  inherited  and  can  perpetuate  the  invincible 
spirit,  the  unconquerable  moral  energy,  the  indomi- 
table steadfastness  of  their  ancestors  — ■  and  whether 
these  qualities  are  available  in  our  own  day  to 
guide  the  nation   safely   and   wisely   through    the 


MAYFLOWER    COMPACT  41 

inevitable  crisis  which  we  are  approaching  as  the 
whole  civihzation  of  Europe  is  being  daily  more 
and  more  engulfed  in  the  abyss  of  this  awful  war. 
These  are  problems  which  our  generation  must 
face  sooner  or  later.  And  who  should  be  better 
qualified  to  guide  us  —  for  it  is  leadership  that  we 
need  —  than  men  who  inherit  the  spirit  and  the  tradi- 
tions of  the  Pilgrim  and  the  Puritan? 

In  this  crisis,  the  greatest  in  our  national  affairs 
since  1861,  I  hope  we  shall  profit  by  the  example  of 
the  founders  of  Plymouth,  who,  as  Palfrey  wrote, 
"gave  dihgent  heed  to  arrangements  for  the  military 
defence  of  the  colony."  It  may  be  also  that  Provi- 
dence will  give  us,  in  the  descendant  of  a  Pilgrim, 
the  captain  who  shall  be  both  our  shield  and  our 
weapon  as  Myles  Standish  was  the  shield  and  the 
weapon  of  your  ancestors. 


CONSTITUTIONAL  MORALITY  ^ 

THE  text  of  this  address  is  taken  from  Grote's 
"  History  of  Greece."  The  historian,  reviewing 
tlie  state  of  the  Athenian  democracy  in  the  age  of 
Kleisthenes,  points  out  that  it  became  necessary  to 
create  in  the  multitude,  and  through  them  to  force 
upon  the  leading  men,  the  rare  and  difficult  senti- 
ment which  he  terms  constitutional  morality.  He 
shows  that  the  essence  of  this  sentiment  is  self- 
imposed  restraint,  that  few  sentiments  are  more 
difficult  to  establish  in  a  community,  and  that  its 
diffusion,  not  merely  among  the  majority,  but 
throughout  all  classes,  is  the  indispensable  condition 
of  a  government  at  once  free,  stable  and  peace- 
able. Whoever  has  studied  the  history  of  Greece 
knows  that  the  Grecian  democracy  was  ultimately 
overthrown  by  the  acts  of  her  own  citizens  and 
their  disregard  of  constitutional  morality  rather 
than  by  the  spears  of  her  conquerors. 

We  American  lawyers  would  be  blind,  indeed,  if 
we  did  not  recognize  that  there  is  at  the  present 
time  a  growing  tendency  throughout  the  country 
to  disregard  constitutional  morality.  On  all  sides 
we  find  impatience  with  constitutional  restraints, 
manifesting  itself  in  many  forms  and  under  many 

^  Address  before  the  Pennsylvania  State  Bar  Association  at  its  eigh- 
teenth annual  meeting,  held  at  Cape  May,  New  Jersey,  June  25,  1912. 


CONSTITUTIONAL    MORALITY  43 

pretences,  and  this  impatience  is  particularly  strong 
with  the  action  of  the  courts  in  protecting  the  indi- 
vidual and  the  minority  against  unconstitutional 
enactments  favoring  one  class  at  the  expense  of 
another.  However  worded  and  however  concealed 
under  professions  of  social  reform  or  social  justice, 
the  underlying  spirit  in  most  instances  is  that  of 
impatience  with  any  restraint  or  rule  of  law. 

We  are  meeting  again  the  oldest  and  the  strongest 
political  plea  of  the  demagogue,  so  often  shown  to 
be  the  most  fallacious  and  dangerous  doctrine  that 
has  ever  appeared  among  men,  that  the  people  are 
infallible  and  can  do  no  wrong,  that  their  cry  must 
be  taken  as  the  voice  of  God,  and  that  whatever  at 
any  time  seems  to  be  the  will  of  the  majority,  how- 
ever ignorant  and  prejudiced,  must  be  accepted  as 
gospel.  The  principal  political  battle-cry  to-day 
seems  to  be  that,  if  the  people  are  now  fit  to 
rule  themselves,  they  no  longer. need  any  checks  or 
restraints,  that  the  constitutional  form  of  repre- 
sentative government  under  which  we  have  lived 
and  prospered  has  become  antiquated  and  unsatis- 
factory to  the  masses,  and  that  we  should  adopt  a 
pure  democracy  and  leave  to  the  majority  itself 
the  decision  of  every  question  of  government  or  legis- 
lation, with  the  power  to  enforce  its  will  or  impulse 
immediately  and  without  restraint. 

We  find  many  political  and  social  reformers  advo- 
cating an  absolute  legislative  body,  whose  edicts,  in 
response  to  the  wishes,  interests,  or  prejudices  of  the 
majority,  shall  at  once  become  binding  on  all,  no 


44  CONSTITUTIONAL    MORALITY 

matter  how  unjust  or  oppressive  these  edicts  may  be. 
Those  who  are  loudest  in  thus  demanding  the  su- 
premacy of  the  legislative  power  are  equally  loud 
in  charging  that  our  legislatures  are  inefficient  or 
corrupt  and  in  proclaiming  distrust  of  the  people's 
representatives  in  legislative  bodies.  In  one  breath 
we  are  asked  to  vest  legislatures  with  power  and 
discretion  beyond  the  control  of  the  courts,  and  in 
the  next  breath  we  are  told  that  legislative  bodies 
are  not  to  be  trusted  by  the  people,  and  hence  that 
we  must  have  the  initiative  and  the  referendum. 

Other  reformers  would  vest  greater  power  in  the 
executive,  so  as  to  enable  him  to  dictate  to  legis- 
latures whatever  he  deemed  or  professed  to  think 
best  for  the  common  welfare  or  for  social  progress. 
In  the  final  analysis  this  would,  of  course,  reduce 
us  to  a  despotism  pure  and  simple,  and  place 
Congress  and  the  state  legislatures  in  the  condition 
of  the  Roman  senate  in  the  second  century.  Argue 
as  we  may  from  the  admonitions  and  experience 
of  the  past,  the  defiant  answer  is  that  the  people 
will  select  the  executive  and  are  prepared  to  trust 
him,  an  answer  that  singularly  disregards  the  fact 
that  they  now  select  the  legislators  whom  they  no 
longer  trust,  and  that  practical  reform  in  legislation 
is  ready  to  their  hand  if  they  will  only  insist  upon 
character  and  ability  in  their  representatives. 

Others  again  would  deny  to  the  courts  the  power 
and  duty  to  declare  unconstitutional  and  void  any 
enactment  of  a  legislative  body  that  was  in  conflict 
with  the  constitution,  or,  if  not  going  quite  so  far, 


CONSTITUTIONAL    MORALITY  45 

would  give  the  courts  power  to  disregard  constitu- 
tional limitations  whenever  the  judges  found  or 
fancied  that  an  enactment  was  in  consonance  with 
prevailing  morality  or  the  opinion  of  the  majority 
in  respect  of  matters  relating  to  the  police  power  or 
social  progress  or  social  justice.  They  would  have 
the  judiciary  interpret  and  enforce  a  constitution  not 
according  to  the  mandate  of  the  people  who  adopted 
it,  nor  according  to  the  true  meaning  and  intent  of 
the  language  employed  by  the  framers,  nor  according 
to  settled  general  rules  and  principles,  but  accord- 
ing to  the  ever-changing  desires  or  notions  or  opinions 
of  the  majority  and  the  personal  ideas  of  so-called 
progressive  or  sympathetic  judges.  Many  of  those 
who  charge  the  judiciary  with  having  usurped  the 
power  to  determine  whether  a  particular  enact- 
ment does  or  does  not  conflict  with  the  fundamen- 
tal and  supreme  law  as  established  by  the  people 
themselves,  would  now  place  a  far  greater  power  in 
the  hands  of  the  courts  by  authorizing  them  to 
expand  or  contract  a  constitution  by  judicial  con- 
struction, and  would  thus  in  reality  vest  in  the 
judges  an  arbitrary  discretion.  Under  this  doctrine, 
practically  every  constitutional  restraint  could  be 
readily  circumvented,  perverted,  or  nullified;  consti- 
tutional rights  could  be  frittered  away,  and  great 
landmarks  of  human  progress  could  be  undermined. 
We  should  then  have  government  by  the  judiciary 
with  a  vengeance.  Our  constitutional  system  would 
be  no  longer  reasonably  fixed  and  stable,  no  longer 
regulated  by  the  justice  of  necessary  general  rules, 


46  CONSTITUTIONAL    MORALITY 

but  would  be  subject  to  constant  uncertainty  and 
change  as  judges  might  think  the  moral  atmosphere 
of  the  moment  or  the  will  or  opinion  or  interests  of 
the  majority  required.  It  would,  of  course,  be  better 
to  have  no  constitutional  restraints  at  all,  and  to 
vest  supreme  power  and  corresponding  responsibility 
in  the  legislative  branch  of  our  government.  It  is 
of  the  essence  of  judicial  power  that  judges  in 
deciding  cases  shall  be  bound  by  principles,  rules 
and  precedents,  that  they  shall  not  be  permitted  to 
exercise  arbitrary  discretion,  and  that  they  shall  be 
required  to  give  reasons  for  their  decisions.  A 
court  bound  by  no  rules  or  principles  at  all  would 
not  be  exercising  judicial  power  as  we  understand 
that  term.  If  we  were  to  vest  in  legislatures  or 
courts  the  discretion  to  obey  or  disobey  constitu- 
tional restraints  according  as  the  prevailing  moral  or 
political  sentiment  might  seem  to  dictate,  we  would 
at  once  deprive  such  restraints  of  all  practical  force 
and  effect,  and  would  have  a  constitution  only  in 
name  and  form  and  not  in  substance.  As  the  late 
Chief  Justice  Fuller,  clariim  et  venerabile  nomen,  so 
well  said  in  the  Lottery  case,  "our  form  of  gov- 
ernment may  remain  notwithstanding  legislation  or 
decision,  but,  as  long  ago  observed,  it  is  with  gov- 
ernments as  with  religions,  the  form  may  survive 
the  substance  of  the  faith.  "^ 

The  limited  time  at  my  disposal  compels  me  to 
confine  this  address  to  the  aspect  of  constitutional 
morahty  which  is  presented  by  the  criticism  of  the 

^  i88  United  States  Reports,  p.  875. 


CONSTITUTIONAL    MORALITY  47 

courts  for  refusing  to  enforce  unconstitutional 
statutes.  This  seems  to  me  to  be  the  most  danger- 
ous of  all  the  lines  of  attack.  I  regret  that  I  have 
not  time  to  deal  with  other  important  aspects  of 
my  subject,  such  as  the  movement  for  the  recall 
of  judges  and  judicial  decisions,  the  agitation  for 
the  initiative  and  the  referendum,  and  the  growing 
practice  on  the  part  of  legislatures  and  executives 
of  abandoning  the  consideration  of  constitutional 
questions  and  leaving  this  duty  to  the  courts,  thus 
casting  upon  the  judges  the  sole  responsibility  and 
frequently  the  unpopularity  and  even  odium  of 
enforcing  constitutional  restraints. 

Few  of  us,  I  assume,  would  seriously  suggest 
that  the  judicial  department  is  to  be  above  criticism, 
or  that  it  is  to  be  deemed  sacrosanct  so  that  we 
must  bow  and  submit  in  silence,  without  the  right 
of  challenge,  criticism,  or  censure,  to  whatever 
the  courts  declare  to  be  law.  Such  a  view  would 
be  absurd.  Of  course,  judges  make  mistakes  as 
the  wisest  and  best  men  make  mistakes.  They  are 
not  infallible.  But  neither  are  our  legislative  bodies 
infallible,  nor  is  the  crowd.  There  must  be  the 
fullest  liberty  of  criticism  and  if  need  be  of  censure 
of  our  judges  as  of  all  other  public  officials.  Fair 
and  just  criticism,  however,  would  be  distinctly  edu- 
cational, and  it  could  tend  only  to  restore  the  courts 
to  public  favor  and  confidence.  The  danger  is  not 
in  freedom  of  criticism,  but  in  unfair  and  unfounded 
criticism  supported  by  distorted  or  false  statements. 
Our  judicial  system  is  inherently  sound  enough  and 


48  CONSTITUTIONAL    MORALITY 

strong  enough  to  withstand  and  overcome  any  fair 
criticism.  We  should,  therefore,  encourage  the  full- 
est discussion  of  judicial  decisions  in  constitutional 
cases  in  order  that  constitutional  principles  may  be 
adequately  explained  and  the  necessity  for  the  ob- 
servance of  constitutional  morality  brought  home  to 
the  people.  Let  us,  however,  insist  that  the  facts 
be  truthfully  stated.  If  the  reasons  and  principles 
of  justice  which  support  most  of  the  decisions  criti- 
cized could  be  explained  to  all  classes  in  simple 
language  and  in  terms  intelligible  to  laymen  as 
well  as  to  lawyers,  much  of  the  misapprehension 
of  judicial  decisions  and  prejudice  against  the 
courts  and  constitutional  restraints  would  be  dis- 
pelled. To  tell  the  man  in  the  street  or  in  the 
workshop  that  a  statute  is  in  conflict  with  the  guar- 
anty of  due  process  of  law  or  of  the  law  of  the 
land,  conveys  no  meaning  to  his  mind;  yet,  if 
he  understood  the  fundamental  principles  involved 
and  the  consequences  of  disregarding  them,  he  might 
be  persuaded  of  the  justice  and  propriety  of  the 
decision  under  discussion. 

I  shall  call  your  attention  to  a  few  examples 
of  alleged  abuse  or  usurpation  of  power  by  the 
judiciary,  and  endeavor  to  show  the  characteristics  of 
much  of  the  criticism  of  the  judges  and  the  manner 
in  which  the  masses  are  being  constantly  prejudiced 
and  inflamed  against  the  courts. 

The  case  in  the  New  York  courts  which  probably 
is  being  more  criticized  and  misrepresented  than 
any  other  is  known  as  the  Tenement  House  Tobacco 


CONSTITUTIONAL    MORALITY  49 

case  (Matter  of  Jacobs) ,i  decided  in  January,  i885. 
The  courts  then  held  unconstitutional  an  act  which 
forbade  the  manufacture  of  tobacco  products  in 
certain  tenement  houses  in  New  York  and  Brooklyn, 
because  the  statute  unwarrantably  and  unreason- 
ably interfered  with  the  liberty  of  the  individual. 
The  enactment  was  an  attempt  on  the  part  of  the 
owners  of  large  tobacco  factories  to  destroy  the 
competition  of  cigar  manufacturers  who  worked  at 
home.  It  was  not  an  honest  health  measure  at  all; 
it  was  not  in  fact  designed  to  protect  the  health  of 
tobacco  workers,  and  it  did  not  contain  a  single 
provision  tending  in  any  degree  to  secure  sanitary 
conditions  of  work  or  living.  Not  one  word  in  the 
opinions  of  the  courts  in  the  Jacobs  case  prevented 
the  legislature  from  adopting  regulations  to  secure 
wholesome  conditions  in  the  manufacture  of  any 
article.  Since  that  decision,  the  New  York  con- 
stitution has  been  carefully  revised  by  a  constitu- 
tional convention  in  189/i,  and  in  addition  has  been 
repeatedly  amended,  no  less  than  nineteen  separate 
amendments  having  been  adopted  by  the  people, 
whilst  a  large  number  of  additional  proposed  amend- 
ments have  been  rejected.  But  in  neither  the  revision 
nor  in  any  of  the  amendments,  whether  adopted  or 
rejected,  was  any  change  suggested  in  the  rule  of 
constitutional  law  declared  in  the  Tenement  House 
case,  although  the  subject  was  directly  called  to 
the  attention  of  the  convention.  For  more  than  a 
quarter  of  a  century,  the  people  of   the  state  of 

'  98  New  York  Reports,  p.  q8. 


50  CONSTITUTIONAL    MORALITY 

New  York  have  acquiesced  in  the  decision  of  the 
Court  of  Appeals  as  fair,  just  and  satisfactory. 

Jacobs  with  his  wife  and  two  children  lived  in  a 
tenement  house  in  the  city  of  New  York  and  occu- 
pied an  apartment  of  seven  rooms  in  a  building 
where  there  were  only  three  other  apartments,  all 
of  equal  size.  In  this  apartment  he  carried  on  the 
trade  of  manufacturing  cigars,  and  the  rooms  in 
which  he  did  so  were  separated  from  the  sleeping  and 
cooking-rooms.  The  testimony  showed  that  there 
was  no  odor  of  tobacco  in  these  sleeping  and  cooking- 
rooms.  The  conditions  under  which  he  was  carrying 
on  his  trade  in  his  own  home  for  the  support  of  him- 
self and  his  family  were  much  more  healthful  than  if 
he  and  his  assistants  had  been  compelled  to  work  in 
a  crowded  factory,  particularly  in  i884,  when  there 
were  no  such  sanitary  conditions  in  factories  as  now 
prevail  under  the  beneficent  operation  of  our  present 
public  health  and  labor  laws.  It  was  shown  that, 
when  this  legislation  was  enacted,  84o,ooo,ooo  cigars 
were  being  manufactured  annually  in  the  city  of  New 
York,  of  which  about  870,000,000,  or  /i4  per  cent., 
were  made  in  the  homes  of  dwellers  in  tenement  or 
apartment  houses,  and  that  about  two  thousand 
artisans  were  supporting  themselves  and  their  families 
by  thus  working  at  home.  The  board  of  health 
of  the  city  of  New  York  had  officially  declared, 
after  careful  investigation,  as  set  forth  in  the  brief 
of  Mr.  Evarts,  then  the  leader  of  the  American  bar, 
"  that  the  health  of  the  tenement-house  population 
is  not  jeopardized  by  the  manufacture  of  cigars  in 


CONSTITUTIONAL    MORALITY  51 

those  houses;  that  this  bill  is  not  a  sanitary  measure, 
and  that  it  has  not  been  approved  by  this  board." 
It  also  appeared  from  this  brief  that  while  the  death- 
rate  in  the  city  of  New  York  generally  was  3i  in 
each  i,ooo,  it  was  only  9  in  each  1,000  in  the  tene- 
ment houses  where  cigars  were  being  manufactured. 
The  act,  if  valid  and  enforceable,  would  have  crushed 
the  competition  of  home  workers  with  the  tobacco 
factories;  it  would  have  deprived  the  tenement- 
house  dweller  of  the  liberty  to  exercise  his  trade  of 
cigar-making  at  home  even  under  the  most  sanitary 
conditions,  and  it  would  have  driven  every  such 
workman  and  the  working  members  of  his  family 
into  crowded  and  generally  unheal thful  factories,  to 
be  harassed  and  oppressed  by  strikes  and  lockouts 
and  the  other  troubles  which  attend  modern  labor 
conditions,  to  say  nothing  of  being  exposed  to  all 
the  mischiefs,  physical  and  moral,  that  are  insepara- 
ble from  crowded  workshops.  The  court  held  that 
the  statute  was  not  a  legitimate  health  regulation 
and  released  Jacobs  from  imprisonment.  The  prin- 
ciple of  constitutional  law  recognized  and  ap|)lied 
was  that  an  individual  cannot  be  made  a  criminal 
for  working  at  a  lawful  trade  in  his  own  home  under 
sanitary  conditions,  and  cannot  be  compelled  by  dis- 
criminatory legislation  to  labor  in  a  crowded  factory. 
If  the  provisions  of  the  act  had  not  been  declared 
to  be  in  conflict  with  the  constitutional  guaranty  of 
personal  liberty,  similar  statutes  could  liave  been 
passed  with  respect  to  all  kinds  of  home  work,  and 
all  artisans,   whether   men  or  women,  could   have 


52  CONSTITUTIONAL    MORALITY 

been  driven  into  factories  at  the  dictation  of  factory 
owners  or  trade-unions  having  sufficient  poHtical 
influence  to  secure  the  necessary  legislation. 

I  digress  here  a  moment  to  point  out  that  people 
urging  particular  enactments  too  often  overlook 
the  efl^ect  of  disregarding  a  principle  and  estab- 
lishing a  precedent.  Constitutions  declare  general 
rules  or  principles  of  justice,  which  sometimes  do 
not  coincide  with  the  justice  of  particular  cases. 
The  framing  of  general  rules  of  conduct  so  as  to 
bring  about  practical  justice  in  the  greatest  number 
of  cases  and  with  the  fewest  exceptions,  constitutes 
the  science  of  jurisprudence,  of  which  constitution- 
making  is  but  a  branch,  and  the  application  of 
these  general  rules  to  practical  affairs  is  the  duty 
of  legislatures  and  courts.  The  statutes  before 
the  courts  are  frequently  recognized  and  conceded 
to  be  only  entering  wedges  and  experiments,  and, 
if  sustained,  are  certain  to  be  followed  by  others 
far  broader  and  more  radical.  If  legislative  power 
exists  to  regulate  a  subject,  the  extent  or  degree  of 
its  exercise  is  essentially  for  the  legislature  to  de- 
termine in  its  discretion  and  cannot  be  controlled 
by  the  courts.  Hence,  a  court  must  always  consider, 
in  determining  the  constitutionality  of  a  statute, 
not  merely  the  features  of  the  particular  statute 
before  it  and  not  merely  the  justice  or  merits  of  the 
particular  case  as  between  man  and  man  or  between 
the  state  and  the  individual,  but  what  might  be 
done  under  the  same  principle  if  the  statute  before 
it  were  upheld  and  a  precedent  established.     Thus, 


CONSTITUTIONAL    MORALITY  53 

if  we  once  grant  the  power  of  a  legislature  to  prohibit 
work  at  home  under  sanitary  conditions  in  one 
trade,  then  every  trade  becomes  subject  to  the 
same  power  of  regulation  and  prohibition,  and  all 
working  men  and  women  can  be  driven  into  crowded 
factories. 

In  the  Jacobs  case,  Presiding  Justice  Noah  Davis, 
speaking  for  the  intermediate  appellate  court  sitting 
in  the  city  of  New  York,  and  undoubtedly  ac- 
quainted with  conditions  then  and  there  existing, 
used  the  following  language:  "A  careful  study  of 
the  act  has  satisfied  us  that  its  aim  was  not  '  to  im- 
prove the  public  health  by  prohibiting  the  manufac- 
ture of  cigars  and  preparation  of  tobacco  in  any 
form  in  tenement  houses  in  certain  cases,  and  regu- 
lating the  use  of  tenement  houses  in  certain  cases,' 
as  declared  in  the  title,  but  to  suppress  and  restrain 
such  manufacture  in  the  cases  covered  by  the  act 
for  the  purpose  of  preventing  successful  competition 
injurious  to  other  modes  of  manufacturing  the  same 
articles.  ...  If  the  act  were  general  and  aimed 
at  all  tenement  houses,  and  prohibited  for  sanitary 
reasons  the  manufacture  of  cigars  and  tobacco  in 
all  such  buildings,  or  if  it  prohibited  such  manu- 
facture in  the  living-rooms  of  all  tenants,  another 
case  would  be  presented.  But  in  the  form  in  which 
it  comes  before  us  it  is  so  unjust  in  its  inequality, 
so  harsh  and  oppressive  upon  the  labor  of  poverty, 
so  keenly  discriminative  in  favor  of  the  stronger 
classes  engaged  in  the  same  occupation,  that  it 
certainly   ought   not   to   have   been   enacted;    but, 


54  CONSTITUTIONAL    MORALITY 

being  enacted,  ought  to  be  held  invahd  because  it 
deprives  the  appellant  of  his  right  and  liberty  to 
use  his  occupation  in  his  own  house  for  the  support 
of  himself  and  family,  and  takes  away  the  value  of 
his  labor,  which  is  his  property  protected  by  the 
Constitution  equally  as  though  it  were  in  lands  or 
money,  without  due  process  of  law."  ^ 

Discussing  the  Jacobs  case,  Mr.  P.  Tecumseh 
Sherman  of  the  New  York  bar,  who  is  reputed  to  be 
one  of  the  best  informed  men  in  our  state  upon  the 
subject  of  labor  conditions  and  labor  legislation  and 
who  was  at  one  time  a  state  commissioner  of  labor, 
said  in  a  letter  published  a  few  weeks  ago  that  the 
tenement-house  statute,  although  purporting  to  be 
for  the  public  health,  was  not  a  reasonable  regulation 
for  that  purpose,  because  it  arbitrarily  selected  one 
article  and  forbade  its  manufacture  under  certain 
conditions  not  generally  unsanitary,  and  he  added 
that  "as  matter  of  fact,  the  act  was  not  designed 
to  protect  health  but  to  put  out  of  business  one  set 
of  competitors  in  a  trade  war." 

Now  let  me  call  your  attention  to  two  examples  of 
the  manner  in  which  this  decision  is  being  criticized. 
In  an  address  dehvered  at  Yale  University  last 
month,  the  mayor  of  the  city  of  New  York,  who  for 
many  years  had  been  a  justice  of  the  state  supreme 
court,  criticized  the  courts  and  derided  the  admin- 
istration of  justice  in  his  own  state.  He  referred  to 
the  Jacobs  case  in  the  following  language:  "The  first 
case  I  shall  call  your  attention  to  is  known  in  my 

133  Hun's  Reports,  pp.  38o,  382,  383. 


CONSTITUTIONAL    MORALITY  55 

own  state  as  the  Tenement  House  Tobacco  case.  .  .  . 
You  know  what  a  condensed  population  we  have 
in  a  part  of  the  city  of  New  York.  Well,  benevo- 
lent men  and  women  in  going  around  there  found 
in  little  rooms  in  these  crowded  tenements  certain 
things  being  manufactured  that  were  not  whole- 
some. They  found  tobacco  being  manufactured 
into  its  various  products  in  the  living-rooms  of 
these  poor  tenements.  Benevolent  people  who 
helped  the  poor  saw  it  and  they  saw  the  evils  of  it. 
They  saw  little  children  born  into  this  world  and 
brought  up  in  bedrooms  and  kitchens  in  the  fumes 
and  odors  of  tobacco.  They  also  saw  longer  hours 
of  work  than  would  be  the  case  if  workers  left  their 
work  at  the  shop  and  went  home.  So  they  went 
to  the  legislature  and  got  a  law  passed  forbidding 
the  manufacture  of  tobacco  in  the  living-rooms  of 
these  tenements."  Mayor  Gaynor  then  proceeded 
to  criticize  and  condemn  the  Court  of  Appeals  for 
its  reasoning  and  decision. 

The  facts,  however,  were  that  the  statute  was 
not  limited  to  "the  hving-rooms  of  these  tenements," 
but  applied  to  every  room,  and  that  the  promoters 
of  this  legislation  were  not  the  benevolent  men 
and  women  who  visit  and  help  the  poor,  as  Mayor 
Gaynor  imagined,  but  the  owners  of  tobacco  fac- 
tories who  desired  to  crush  the  competition  of 
independent  workers.  Nor  was  there  anything  in 
the  case  before  the  courts  to  support  the  statement 
that  any  one  had  seen  "httle  children  born  into 
this  world  and  brought  up  in  bedrooms  and  kitchens 


56  CONSTITUTIONAL    MORALITY 

in  the  fumes  and  odors  of  tobacco."  No  such 
conditions  were  before  the  courts,  and  the  contrary 
was  proved  by  unimpeached  evidence  in  the  Jacobs 
case,  as  any  one  reading  the  record  could  see.  But, 
even  if  the  picture  had  been  true,  the  decision  in 
this  case  did  not  in  any  way  whatever  prevent 
proper  legislation  prohibiting  the  manufacture  of 
tobacco  products  in  the  bedrooms  and  kitchens  of 
crowded  tenement  houses  or  under  unsanitary  condi- 
tions. 

Ex-President  Roosevelt  is  equally  inaccurate  in 
his  criticism  of  the  Jacobs  case.  He  is  reported  as 
having  said  in  one  of  his  recent  speeches  that  "the 
decision  of  the  court  in  this  case  retarded  by  at  least 
twenty  years  the  work  of  tenement-house  reform 
and  was  directly  responsible  for  causing  hundreds 
of  thousands  of  American  citizens  now  alive  to  be 
brought  up  under  conditions  of  reeking  filth  and 
squalor,  which  measurably  decreased  their  chance 
of  turning  out  to  be  good  citizens."  The  truth  is 
that  the  decision  did  not  retard  tenement-house 
reform  by  a  single  day,  and  did  not  prevent  the 
enactment  of  a  single  provision  for  securing  sanitary 
conditions  for  those  who  work  at  home.  In  fact, 
the  necessary  legislation  has  since  been  readily 
secured  and  enacted  in  New  York  without  any 
amendment  of  the  state  constitution.  Our  public 
health  and  labor  laws  now  regulate  the  manufac- 
ture of  tobacco  and  other  articles  in  homes  and 
require  and  secure  sanitary  conditions,  and  licenses 
authorizing  manufacturing  at  home  are  issued  sub- 


CONSTITUTIONAL    MORALITY  57 

ject  to  cancellation  at  any  time  if  the  surroundings 
become  unsanitary. 

Mr.  Sherman  characterized  as  absurd  the  state- 
ment made  by  Mr.  Roosevelt  in  regard  to  the 
effect  of  this  decision,  and  added  that  "so  far,  then, 
from  having  done  harm  in  the  way  of  sanitary 
reform,  the  decision  in  the  Jacobs  case  has  done 
good  by  giving  the  reform  a  proper  direction  and 
object.  Mr.  Roosevelt's  criticism  receives  a  ready 
chorus  of  approval  from  a  large  body  of  ill-informed 
reformers  who  seek  to  prevent  some  of  the  evils  of 
'sweating'  by  arbitrarily  forbidding  all  home  manu- 
facture in  tenements.  Rut  the  vast  majority  of 
tenement  houses  in  New  York  are  of  a  class  better 
described  as  apartment  houses,  which  are  perfectly 
sanitary,  and  in  such  houses  there  is  much  home 
work  of  a  good  kind,  such  as  fine  sewing,  art  work, 
&c.,  and  under  good  conditions;  and  it  would  be  a 
deplorable  and  unnecessary  interference  with  liberty 
to  forbid  such  work  as  an  incident  to  the  prevention 
of  home  work  in  unsanitary  slums." 

Another  New  York  case  which  is  being  similarly 
criticized  and  misrepresented  is  what  is  known  as 
the  Rakers  case,  or  People  vs.  Lochner.^  The  decision 
in  this  case  declaring  a  statute  unconstitutional  was 
that  of  the  Supreme  Court  of  the  United  States  and 
not  of  the  New  York  Court  of  Appeals;  in  fact  the 
latter  court  sustained  the  act,  although  by  a  divided 
court.  Mayor  Gaynor  explained  this  decision  to  his 
audience  at  Yale,  composed  largely  of  law  students, 

*  177  New  York  Reports,  p.  i45;  198  United  States  Reports,  p.  45. 


58  CONSTITUTIONAL    MORALITY 

in  the  following  language:  "The  next  case  in  order 
was  the  bake-oven  case  in  my  state.  A  bake-oven, 
you  know,  is  underground.  And  if  any  of  you  ever 
were  in  a  bake-oven  I  do  not  need  to  say  another 
word  about  bake-ovens.  It  is  the  hottest  and  most 
uncomfortable  place  on  the  face  of  the  earth.  It  is 
a  hard  place  to  work  in.  It  is  hot  and  unhealthy, 
and  no  one  can  stand  it  without  injury  to  health. 
So  in  the  same  way  in  the  state  of  New  York  we 
had  an  act  passed  prescribing  sanitary  regulations 
for  the  bakeries.  .  .  .  These  bake-ovens  are  excep- 
tional. They  are  underground  and  as  hot  as  Tophet, 
if  I  may  use  such  an  expression  here.  .  .  .  The 
law  was  passed  prescribing  regulations  for  them. 
One  of  the  regulations  was  that  ten  hours  a  night 
was  all  that  a  baker  should  work  in  these  places." 
And  Mr.  Roosevelt  is  reported  in  the  newspapers 
as  criticizing  this  decision  and  stating  to  his  audi- 
ences that  "this  New  York  law  prevented  the  em- 
ployment of  men  in  filthy  cellar  bakeries  for  longer 
than  ten  hours  a  day." 

The  statute  in  question  applied  to  manufacturers 
of  bread,  biscuits  and  confectionery.  Taken  in 
connection  with  the  then  existing  Public  Health 
Law,  it  contained  adequate  provisions  for  securing 
the  best  conditions  of  sanitation  and  ventilation 
and  for  safeguarding  bakers  from  the  effects  of  heat 
and  of  breathing  flour  or  other  particles.  There  was 
no  distinction  drawn  in  the  act  as  to  hours  of  labor 
between  sanitary  and  unsanitary  conditions  of  work, 
or  between  bakers  and  other  employees,  or  between 


CONSTITUTIONAL    MORALITY  59 

night  and  day  work.  The  power  of  the  legislature 
to  prevent  the  manufacture  of  bread  or  other  articles 
of  food  in  cellars  or  in  underground  bake-ovens  or 
in  filthy  and  unsanitary  places,  whether  above  or 
below  ground,  was  not  challenged.  The  provisions 
of  the  act  tending  to  secure  sanitary  conditions  were 
not  interfered  with  or  set  aside  by  the  courts,  and 
they  have  ever  since  been  enforced  as  valid  for  all 
purposes.  The  act  was  not  confined  in  its  operation 
to  workmen  compelled  to  labor  at  night  under- 
ground, but  applied  to  everyone  employed  day  or 
night  in  factories,  above  or  below  ground,  in  which 
bread,  confectionery,  or  biscuits  were  manufactured. 
It  is  true  that  medical  authorities  were  cited  to  the 
courts  in  support  of  the  view  that  the  trade  of  a  baker 
was  injurious  to  health,  but  such  authorities  were 
based  upon  statistics  gathered  under  conditions  of 
labor  which  could  not  have  existed  then  and  cannot 
exist  now  in  New  York  if  the  elaborate  regulations 
of  our  public  health  and  labor  laws  be  duly 
enforced.  There  were,  however,  conflicting  medical 
authorities  cited  to  the  court,  which  asserted  that 
the  trade  was  not  unwholesome. 

Lochner  owned  a  bakery  at  Utica  in  which  he 
worked  himself  and  employed  three  or  four  work- 
men. There  was  only  one  oven,  and  it  was  above 
ground.  The  building  was  clean,  especially  well 
ventilated  and  sanitary.  The  only  question  before 
the  court  in  the  case  was  whether  Lochner  could 
be  made  a  criminal  and  imprisoned  for  permitting 
his  workmen  to  labor  more  than  ten  hours  in  any 


60  CONSTITUTIONAL    MORALITY 

day  under  the  best  sanitary  conditions,  and  the 
Supreme  Court  held  that  this  could  not  be  done 
without  violating  his  constitutional  rights.  Had 
the  conditions  of  work  in  bread,  biscuit,  or  con- 
fectionery factories  in  the  state  of  New  York  been 
shown  to  have  been  unusually  dangerous  and  neces- 
sarily unwholesome,  the  law  would  undoubtedly 
have  been  sustained  by  the  Supreme  Court,  as  was 
the  Utah  miners'  act  in  Holden  vs.  Hardy. ^  No 
one  who  has  studied  the  decisions  of  the  New 
York  courts  or  of  the  Supreme  Court  of  the  United 
States  can  doubt  that  any  statutory  provision 
reasonably  tending  to  protect  the  health  of  bakers 
and  other  workmen  and  to  prevent  labor  in  un- 
healthful  places  would  be  upheld  as  clearly  within 
the  police  power  of  the  legislature. 

The  act,  moreover,  was  one-sided  and  discrimina- 
tory in  that  it  made  the  employer  a  criminal  but 
left  the  workman  free  to  do  as  he  saw  fit.  A  baker 
working  for  A  for  ten  hours  in  one  day  was  left 
at  liberty  to  go  next  door  to  B,  A's  competitor, 
and,  if  he  saw  fit,  work  another  ten  hours  for  B. 
In  fact,  as  I  am  told,  the  informer  on  whose  testi- 
mony Lochner  was  convicted  frequently  worked  ten 
hours  a  day  for  Lochner  and  a  number  of  hours 
additional  in  another  bakery.  If  the  act  had  been 
honestly  conceived  in  a  desire  to  safeguard  the 
health  of  bakers,  it  would,  of  course,  have  pro- 
vided some  punishment  for  any  violation  of  the 
law  on  the  part  of  the  workmen,  and  not  have  left 

^  169  United  States  Reports,  p.  366. 


CONSTITUTIONAL    MORALITY  61 

them  at  liberty  to  disregard  its  spirit  whenever  they 
saw  fit  to  do  so. 

The  principle  involved  in  this  Bakers  case  Avas 
universal,  and  if  employers  in  bread,  biscuit,  or 
confectionery  factories  could  be  made  criminals  for 
permitting  their  employees  to  labor  more  than  ten 
hours  in  any  one  day,  the  legislature  could  enact 
similar  legislation  as  to  every  other  employment. 
No  court  would  then  have  power  to  regulate  the 
degree  of  the  exercise  of  legislative  discretion  in 
such  cases.  The  provision,  which  at  first  limited 
the  workday  to  ten  hours,  could  thereafter  be 
changed  to  eight  hours,  or  even  to  six  hours,  as  was 
advocated  in  More's  "Utopia." 

In  February  of  this  year,  Mr.  Roosevelt  delivered 
an  address  before  the  Ohio  constitutional  conven- 
tion, in  which  he  discussed  the  decision  of  the 
Supreme  Court  of  the  United  States  in  the  Em- 
ployers' Liability  cases,^  decided  while  he  was  Presi- 
dent. The  court  then  held  that  the  act  of  Congress 
of  June  II,  1906,  sometimes  erroneously  called  the 
National  Workmen's  Compensation  Act,  attempted 
to  regulate  the  internal  affairs  of  the  several  states 
as  well  as  interstate  commerce,  that  it  consequently 
included  a  subject  not  within  the  constitutional 
power  of  Congress,  and  that  the  two  matters  were 
so  blended  that  they  were  incapable  of  separa- 
tion unless  the  court  made  a  new  statute  in  the 
place  of  the  one  enacted  by  Congress.  Conscien- 
tiously entertaining  this  view,  the  majority  of  the 

^  207  United  States  Reports,  p.  463. 


62  CONSTITUTIONAL    MORALITY 

court  would  have  been  guilty  of  the  plainest  con- 
stitutional immorality  if  they  had  not  declared  that 
the  act  was  beyond  the  power  of  Congress  and 
declined  to  give  it  effect.  No  honest  men,  believing 
as  the  majority  did,  could  have  done  otherwise  than 
obey  the  constitutional  mandate  expressly  reserving 
to  the  states  the  legislative  powers  not  delegated  to 
Congress.  In  the  light  of  the  long-established  and 
wise  rule  that  courts  should  avoid  judicial  legislation 
and  not  revise  or  give  effect  to  a  statute  in  a  manner 
not  clearly  intended  by  the  legislative  body,  the 
justices  could  not,  of  course,  have  upheld  and 
enforced  the  statute  simply  because  the  individual 
cases  before  them  excited  their  sympathy  or  involved 
the  claims  of  widows.  The  remedy  was  obvious 
and  simple.  Congress  was  then  in  session,  and 
within  a  few  days  an  amended  statute  could  have 
been  enacted  so  as  to  limit  the  act  to  interstate 
commerce,  which  alone  was  within  the  constitu- 
tional power  of  Congress  to  regulate.  After  the 
lapse  of  three  months,  such  a  law  was  enacted,  and 
being  plainly  confined  to  interstate  commerce,  as  the 
original  statute  should  have  been,  and  would  have 
been  if  properly  and  competently  drafted,  the 
amended  act  was  unanimously  sustained  by  the 
Supreme  Court  as  constitutional  in  the  Second 
Employers'  Liability  cases,  decided  this  year,i  when 
it  was  held  that  Congress  had  power  to  change  the 
common  law  rules  as  to  assumption  of  risk,  con- 
tributory   negligence    and   fellow-servants'    acts   in 

^  223  United  States  Reports,  p.  i. 


CONSTITUTIONAL    MORALITY  63 

connection  with  the  regulation  of  interstate  com- 
merce. 

Speaking  of  the  first  decision,  Mr.  Roosevelt  said : 
"When  I  was  President,  we  passed  a  National  Work- 
men's Compensation  Act.  Under  it  a  railway  man 
named  Howard,  I  think,  was  killed  in  Tennessee, 
and  his  widow  sued  for  damages.  Congress  had 
done  all  it  could  to  provide  the  right,  but  the  court 
stepped  in  and  decreed  that  Congress  had  failed. 
Three  of  the  judges  took  the  extreme  position  that 
there  was  no  way  in  which  Congress  could  act  to 
secure  the  helpless  widow  and  children  against 
suffering,  and  that  the  man's  blood  and  the  blood 
of  all  similar  men  when  spilled  should  forever  cry 
aloud  in  vain  for  justice.  This  seems  a  strong 
statement,  but  it  is  far  less  strong  than  the  actual 
facts;  and  I  have  difficulty  in  making  the  statement 
with  any  degree  of  moderation.  The  nine  justices 
of  the  Supreme  Court  on  this  question  split  into 
five  fragments.  One  man,  Justice  Moody,  in  his 
opinion  stated  the  case  in  its  broadest  way  and 
demanded  justice  for  Howard,  on  grounds  that 
would  have  meant  that  in  all  similar  cases  thereafter 
justice  and  not  injustice  should  be  done.  Yet  the 
court,  by  a  majority  of  one,  decided  as  I  do  not  for 
one  moment  believe  the  court  would  now  decide, 
and  not  only  perpetuated  a  lamentable  injustice  in 
the  case  of  the  man  himself,  but  set  a  standard 
of  injustice  for  all  similar  cases.  Here  again  I  ask 
you  not  to  think  of  mere  legal  formalism,  ])ut 
to  think  of  the  great  inunu table  ])rinciplos  of  jus- 


64  CONSTITUTIONAL    MORALITY 

tice,  the  great  immutable  principles  of  right  and 
wrong,  and  to  ponder  what  it  means  to  men  de- 
pendent for  their  livelihood,  and  to  the  women  and 
children  dependent  upon  these  men,  when  the  courts 
of  the  land  deny  them  the  justice  to  which  they  are 
entitled." 

Now,  if  this  argument  meant  anything  it  certainly 
meant  that,  in  the  opinion  of  the  speaker,  an  ex- 
President  of  the  United  States,  the  justices  of  the 
Supreme  Court  should  have  disregarded  the  Con- 
stitution as  they  understood  it  in  order  to  allow  a 
widow  to  recover  notwithstanding  the  unconstitu- 
tionality of  the  act  under  and  by  virtue  of  which 
she  was  suing.  You  will  not  find  a  single  word  of 
reference  by  Mr.  Roosevelt  in  his  whole  address 
to  the  only  point  upon  which  the  majority,  speaking 
by  Mr.  Justice  White,  decided  the  cases.  Of  course, 
the  statement  of  what  was  actually  decided  would 
have  been  tame  and  unsensational.  The  criticism 
in  form  and  substance  was  based  upon  a  distorted 
and  unfair  statement  of  what  was  decided,  and  it 
was  calculated  to  create  in  the  minds  of  the  mem- 
bers of  the  Ohio  constitutional  convention,  as  well 
as  in  the  minds  of  the  uninformed  public,  the 
belief  that  the  justices  of  the  Supreme  Court  of 
the  United  States  had  "set  a  standard  of  injustice 
for  all  similar  cases"  and  had  denied  to  Congress 
the  power  to  pass  a  fair  and  just  employers'  liability 
statute  properly  limited  to  interstate  commerce. 
The  contrary  was  plainly  the  truth,  as  the  subse- 
quent decision  of  the  court  had  clearly  shown,  for 


CONSTITUTIONAL    MORALITY  65 

this   latter   decision    was   rendered    and   published 
before  Mr.  Roosevelt  made  his  address. 

Another  example  of  distorted  statement  and  unfair 
criticism  of  the  courts  will  be  found  in  tlie  same 
address.  It  related  to  the  decision  of  the  New 
York  Court  of  Appeals  in  the  case  of  Ives  vs.  South 
Buffalo  Railway  Company/  decided  last  year,  in 
which  the  court  held  that  a  statute  concededly 
novel  and  revolutionary,  creating  liability  on  the 
part  of  an  employer  to  his  workmen  although  the 
employer  and  his  agents  were  wholly  free  from 
negligence  or  fault  of  any  kind  and  had  neglected 
no  duty  of  care,  supervision  or  selection,  was  un- 
constitutional because  taking  the  property  of  the 
employer  and  giving  it  to  the  workman  without 
due  process  of  law.  Ives  was  a  brakeman  employed 
by  the  defendant  railway  company.  While  walking 
on  the  top  of  the  cars  of  a  very  long  train,  he  gave 
a  signal  to  the  engineer  to  close  up  a  space  or  slack 
and  was  thrown  to  the  ground  by  the  resulting  jar, 
concededly  without  any  negligence  on  the  part  of 
the  railway  company,  and  probably  through  his  own 
carelessness.  The  injury  consisted  of  a  sprained 
ankle  and  slight  bruises.  There  was  no  claim  in 
the  complaint  that  the  injury  was  in  any  sense 
permanent,  and  as  matter  of  fact  Ives  sued  for  loss 
of  wages  during  only  five  weeks,  claiming  fifty 
dollars  as  the  measure  of  his  damage.  I  am  in- 
formed that  the  injury  was  not  serious,  that  Ives 
entirely   recovered   and   resumed   his   work   within 

*  201  New  York  Reports,  p.  271. 


66  CONSTITUTIONAL    MORALITY 

four  weeks  after  the  injury,  that  the  railroad  com- 
pany ultimately  paid  him  for  his  loss  of  time,  that 
he  has  since  been  continuously  employed  by  the 
same  company  at  similar  work,  and  that  in  no 
sense  whatever  was  his  ability  to  earn  his  liveli- 
hood impaired. 

Let  us  turn  to  the  picture  drawn  by  Mr.  Roosevelt 
in  describing  this  case  for  the  instruction  and  guid- 
ance of  a  constitutional  convention.  "I  am  not 
thinking  of  the  terminology  of  the  decision,  nor  of 
what  seem  to  me  the  hair-splitting  and  meticulous 
arguments  elaborately  worked  out  to  justify  a  great 
and  terrible  miscarriage  of  justice.  Moreover,  I 
am  not  thinking  only  of  the  sufferers  in  any  given 
case,  but  of  the  tens  of  thousands  of  others  who 
suffer  because  of  the  way  this  case  was  decided. 
In  the  New  York  case,  the  railway  employee  who 
was  injured  was  a  man  named,  I  believe,  Ives.  The 
court  admits  that  by  every  moral  consideration  he 
was  entitled  to  recover  as  his  due  the  money  that 
the  law  intended  to  give  him.  Yet  the  court  by 
its  decision  forces  that  man  to  stagger  through  life 
maimed,  and  keeps  the  money  that  should  be  his 
in  the  treasury  of  the  company  in  whose  service, 
as  an  incident  of  his  regular  employment  and  in 
the  endurance  of  ordinary  risks,  he  lost  the  ability 
to  earn  his  own  livelihood.  There  are  thousands 
of  Iveses  in  this  country;  thousands  of  cases  such 
as  this  come  up  every  year;  and  while  this  is  true, 
while  the  courts  deny  essential  and  elementary 
justice  to  these  men  and  give  to  them  and  the 


CONSTITUTIONAL    MORALITY  67 

people  in  exchange  for  justice  a  technical  and  empty 
formula,  it  is  idle  to  ask  me  not  to  criticize  them. 
As  long  as  injustice  is  kept  thus  intrenched  by  any 
court,  I  will  protest  as  strongly  as  in  me  lies  against 
such  action." 

To  repeat,  as  a  matter  of  fact,  Ives  was  not 
maimed;  he  was  not  permanently  injured;  he  was 
not  deprived  of  the  ability  to  earn  his  livelihood. 
Nor  did  the  Court  of  Appeals  admit  that  by  every 
moral  consideration  Ives  was  entitled  to  recover 
as  his  due  the  money  that  the  law  intended  to  give 
him.  Had  that  point  been  before  a  court  of  justice, 
however  sympathetic  and  sentimental,  I  doubt 
very  much  whether  it  could  have  held  that  Ives 
was  entitled,  by  any  moral  consideration  whatever, 
to  compel  the  railway  company  to  compensate  him 
for  the  four  or  five  weeks'  loss  of  wages  resulting 
from  no  fault  on  its  part  but  from  his  own  careless- 
ness. The  statements  that  "  the  court  by  its  decision 
forces  that  man  to  stagger  through  life  maimed" 
and  that  "he  lost  the  ability  to  earn  his  own  liveli- 
hood" were  simply  so  much  fiction,  but,  of  course 
they  were  very  effective  with  emotional  audiences 
and  highly  calculated  to  inflame  Mr.  Roosevelt's 
hearers  and  readers  against  the  courts.  I  venture 
to  assert  that  it  would  be  difficult  to  find  or  indeed 
to  conceive  a  more  unwarranted  and  unfair  mis- 
representation of  the  facts  actually  before  a  court. 

Another  current  misrepresentation  is  that  the 
Supreme  Court  of  the  United  States  in  the  Second 
Employers'  Liabihty  cases  upheld  as  constitutional 


68  CONSTITUTIONAL    MORALITY 

a  statute  of  Congress  identical  with  the  statute  held 
unconstitutional  by  the  New  York  Court  of  Appeals 
in  the  Ives  case.  The  people  are  being  told  that 
the  New  York  courts  hold  the  provision  requiring 
due  process  of  law  in  the  fourteenth  amendment  to 
mean  one  thing,  whilst  the  Supreme  Court  of  the 
United  States  holds  exactly  the  same  provision  in 
the  fifth  amendment  to  mean  the  contrary.  But 
those  who  will  take  the  trouble  to  read  the  two 
statutes  will  at  once  perceive  that  the  act  of  Con- 
gress differs  radically  from  the  New  York  Work- 
men's Compensation  Act.  The  act  of  Congress, 
although  abolishing  or  restricting  the  rules  as  to 
fellow-servants'  acts,  assumption  of  risk  and  con- 
tributory negligence,  imposes  liability  on  common 
carriers  by  railroad  only  for  "injury  or  death  resulting 
in  whole  or  in  part  from  the  negligence  of  any  of  the 
officers,  agents,  or  employees  of  such  carrier,  or  by 
reason  of  any  defect  or  insufficiency,  due  to  its 
negligence,  in  its  cars,  engines,  appliances,  machinery, 
track,  roadbed,  works,  boats,  wharves,  or  other 
equipment."  On  the  other  hand,  the  New  York 
statute  created  liability  not  in  one  dangerous  employ- 
ment, such  as  the  business  of  common  carrier  by 
railroad,  but  in  many  other  employments  not 
necessarily  dangerous,  and  wholly  irrespective  of 
negligence  or  fault  on  the  part  of  the  employer  or 
any  of  his  officers,  agents,  or  employees.  In  fact, 
there  is  nothing  in  the  New  York  decision  or  in  the 
opinions  of  the  judges  which  would  invalidate  a 
statute  identical  with  the  act  of  Congress  if  now 


CONSTITUTIONAL    MORALITY  69 

enacted  by  the  New  York  legislature.  The  Ives 
case,  far  from  preventing  such  a  statute,  would  be 
an  authority  in  its  support. 

I  regret  that  we  have  not  time  to  consider  further 
these  particular  decisions.  In  my  opinion  they  cor- 
rectly and  wisely  applied  established  principles  of 
constitutional  law  and  constitutional  justice  and  were 
morally  right  and  just.  I  am  now  pleading  for 
fairness  and  temperance  in  discussing  the  decisions 
of  our  courts  and  for  the  imperative  necessity  of 
founding  these  discussions  upon  the  truth.  Am- 
bassador Bryce  said  in  a  recent  address:  "To  counsel 
you  to  stick  to  facts  is  not  to  dissuade  you  from 
philosophical  generalizations,  but  only  to  remind 
you  .  .  .  that  the  generalizations  must  spring  out 
of  the  facts,  and  without  the  facts  are  worthless." 
In  other  words,  a  regard  for  fact,  which  is  but  anotlier 
term  for  truth,  is  or  should  be  as  indispensable  in 
law  and  politics  as  it  is  in  philosophy. 

The  criticisms  of  which  the  above  are  fair  sam])les 
must  be  refuted  because  they  find  constant  repe- 
tition and  have  the  authority  of  distinguished 
leaders  of  public  opinion,  who  at  the  present  time 
seem  to  have  the  confidence  of  the  people.  Their 
statements  are  naturally  accepted  as  true.  The 
judges  are  being  similarly  misrepresented  and  assailed 
on  all  sides,  and  they  cannot  defend  themselves. 
Thus  far  the  bar  at  large  has  seemed  indifferent, 
and  a  misconception  of  what  constitutes  good  taste 
imposes  silence  upon  tlie  counsel  engaged  in  the 
cases  which  are  criticized.     The  people  are  being 


70  CONSTITUTIONAL    MORALITY 

misled,  prejudiced  and  inflamed  by  false  statements 
and  unfair  criticism.  If  the  courts  arc  not  defended, 
they  may  bend  before  the  storm  of  undeserved 
censure.  Constituted  as  humanity  is,  there  is  grave 
danger  that  the  judges  will  be  unconsciously  in- 
timidated and  coerced  by  this  abuse  and  clamor. 
Is  it  not  high  time  that  the  members  of  our  pro- 
fession should  charge  themselves  with  the  task  of 
defending  the  courts  by  placing  the  facts  before  the 
people  .^^  The  bar  associations  of  the  country  will 
never  be  called  upon  to  render  a  greater  service 
to  the  profession  and  to  the  community  than  that 
of  stemming  this  tide  of  misrepresentation  and 
intemperate  abuse  and  striving  to  restore  confidence 
in  the  learning,  impartiality  and  independence  of 
our  judges,  in  the  justice  of  their  decisions,  and 
in  the  necessity  of  their  enforcing  constitutional 
restraints. 

Not  only  are  the  decisions  of  the  courts  constantly 
distorted  and  misrepresented,  but  the  people  are 
also  being  taught  that  the  courts  have  usurped  the 
power  to  declare  void  any  statute  in  conflict  with 
the  constitution,  and  that  no  such  power  was  ever 
intended  to  be  conferred  by  the  framers  of  national 
or  state  constitutions.  Surely  by  this  time  it  ought 
to  be  manifest  that  if  the  courts  may  not  adjudge 
invalid  and  refuse  to  give  force  and  effect  to  uncon- 
stitutional enactments,  it  is  of  little  or  no  use  to 
declare  in  constitutions  that  legislatures  shall  not 
pass  bills  of  attainder,  or  ex  post  facto  laws,  or  laws 
abridging  the  freedom  of  speech,  or  of  the  press,  or 


CONSTITUTIONAL    MORALITY  71 

prohibiting  the  free  exercise  of  rehgion,  or  denying 
the  right  to  trial  by  jury,  or  imprisoning  without 
trial,  or  suspending  the  writ  of  habeas  corpus,  or 
confiscating  private  property. 

Speaking  on  this  subject  of  judicial  power  and 
duty,  Hamilton  in  the  "Federalist"  used  language 
which  cannot  be  too  often  repeated.  He  clearly 
showed  that  in  1788  it  was  understood  and  con- 
templated that  the  courts  should  exercise  the  power 
to  adjudge  invalid  any  statute  which  was  in  con- 
flict with  the  Constitution.  In  fact,  such  power 
had  then  already  been  exercised  by  state  courts. 
He  said  that  constitutional  limitations  "can  be 
preserved  in  practice  no  other  way  than  tlirough 
the  medium  of  courts  of  justice,  whose  duty  it 
must  be  to  declare  all  acts  contrary  to  the  mani- 
fest tenor  of  the  Constitution  void.  Without  this, 
all  the  reservation  of  particular  rights  or  privi- 
leges would  amount  to  nothing.  .  .  .  There  is  no 
position  which  depends  on  clearer  principles  than 
that  every  act  of  a  delegated  authority,  contrary 
to  the  tenor  of  the  commission  under  whicli  it  is 
exercised,  is  void.  No  legislative  act,  therefore, 
contrary  to  the  Constitution,  can  be  valid.  To 
deny  this  would  be  to  afiirm  that  the  deputy  is  greater 
than  his  principal;  that  the  servant  is  above  his 
master;  that  the  representatives  of  the  people  are 
superior  to  the  people  themselves;  that  men  acting 
by  virtue  of  powers  may  do  not  only  what  their 
powers  do  not  authorize,  but  what  they  forbid.  .  .  . 
The  interpretation  of  the  laws  is  the  proper  and 


72  CONSTITUTIONAL    MORALITY 

peculiar  province  of  the  courts.  A  constitution  is, 
in  fact,  and  must  be  regarded  by  the  judges,  as  a 
fundamental  law.  It  therefore  belongs  to  them  to 
ascertain  its  meaning,  as  well  as  the  meaning  of 
any  particular  act  proceeding  from  the  legislative 
body.  If  there  should  happen  to  be  an  irreconcil- 
able variance  between  the  two,  that  which  has  the 
superior  obligation  and  validity  ought,  of  course,  to 
be  preferred;  or,  in  other  words,  the  Constitution 
ought  to  be  preferred  to  the  statute;  the  intention 
of  the  people  to  the  intention  of  their  agents.  Nor 
does  this  conclusion  by  any  means  suppose  a  supe- 
riority of  the  judicial  to  the  legislative  power.  It 
only  supposes  that  the  power  of  the  people  is  superior 
to  both;  and  that  where  the  will  of  the  legislature, 
declared  in  its  statutes,  stands  in  opposition  to  that 
of  the  people,  declared  in  the  Constitution,  the 
judges  ought  to  be  governed  by  the  latter  rather 
than  the  former.  They  ought  to  regulate  their 
decisions  by  the  fundamental  laws,  rather  than  by 
those  which  are  not  fundamental."  ^ 

Equally  conclusive  and  equally  worthy  of  constant 
repetition  is  the  reasoning  of  Chief  Justice  Marshall 
in  Marbury  vs.  Madison,  where  he  said:  "To  what 
purpose  are  powers  limited,  and  to  what  purpose  is 
that  limitation  committed  to  writing,  if  these  hmita- 
tions  may,  at  any  time,  be  passed  by  those  intended 
to  be  restrained?  The  distinction  between  a  govern- 
ment with  limited  and  unlimited  powers  is  abolished, 
if  those  limits  do  not  confine  the  persons  on  whom 

1  The  Federalist,  Ford's  edition,  pp.  520,  621,  522. 


CONSTITUTIONAL    MORALITY  73 

they  are  imposed,  and  if  acts  prohibited  and  acts 
allowed  are  of  equal  obligation.  It  is  a  proposition 
too  plain  to  be  contested,  that  the  Constitution 
controls  any  legislative  act  repugnant  to  it;  or, 
that  the  legislature  may  alter  the  Constitution  by 
an  ordinary  act.  Between  these  alternatives  there 
is  no  middle  ground.  The  Constitution  is  either  a 
superior  paramount  law,  unchangeable  by  ordinary 
means,  or  it  is  on  a  level  with  ordinary  legislative 
acts,  and,  like  other  acts,  is  alterable  when  the 
legislature  shall  please  to  alter  it.  If  the  former 
part  of  the  alternative  be  true,  then  a  legislative 
act  contrary  to  the  Constitution  is  not  law:  if  the 
latter  part  be  true,  then  written  constitutions  are 
absurd  attempts,  on  the  part  of  the  people,  to  limit 
a  power  in  its  own  nature  illimitable."^ 

This  decision  of  the  Supreme  Court  to  the  effect 
that  it  is  the  duty  and  within  the  power  of  the 
courts  to  construe  constitutions  and  to  refuse  to 
enforce  unconstitutional  enactments  was  rendered  in 
i8o3.  Yet,  notwithstanding  that  the  Constitution  of 
the  United  States  has  been  amended  four  times  since 
that  decision,  and  that  every  state  constitution  has 
been  again  and  again  remodeled  or  amended,  no 
American  constitution  has  ever  denied  to  the  courts 
the  power  to  construe  constitutions  or  the  duty  to 
refuse  to  enforce  statutes  which  are  in  conflict 
with  constitutional  limitations.  If  the  power  to 
declare  void  any  statute  in  conflict  with  the  Con- 
stitution of  the  United  States  was  deemed  necessary 

*  I  Cranch's  Reports,  pp.  17G-177. 


74  CONSTITUTIONAL    MORALITY 

in  1788  when  Hamilton  was  writing  his  famous 
essays,  it  certainly  ought  to  be  far  more  necessary 
in  our  day  of  multiform  legislation,  vast  increase  in 
the  functions  of  the  state,  and  incompetent,  reckless 
and  oppressive  class  legislation  interfering  in  almost 
every  conceivable  manner  with  the  rights  and 
liberties  of  the  individual. 

Moreover,  the  Constitution  of  the  United  States 
would  probably  never  have  been  adopted  if  the 
people  had  understood,  as  is  now  pretended,  that 
Congress  was  to  be  at  liberty  to  disregard  constitu- 
tional limitations  and  guaranties  and  that  there 
would  be  no  way  whatever  of  preventing  a  violation 
by  Congress  of  the  constitutional  rights  of  the 
individual  except  at  the  polls.  All  students  of  our 
history  know  that  the  Constitution  was  accepted 
by  the  people  upon  the  distinct  pledge  that  amend- 
ments embodying  a  bill  of  rights  to  protect  the 
individual  against  Congress  would  be  immediately 
adopted.  And  one  of  the  first  acts  of  the  First 
Congress  in  September,  1789,  was  to  submit  the 
ten  amendments  known  as  the  federal  bill  of 
rights,  which  were  thereupon  ratified  by  the  states 
and  became  an  integral  part  of  the  Constitution. 
But  of  what  avail  or  benefit  were  these  amend- 
ments if  Congress  was  not  to  be  effectively  restrained 
and  bound  by  them.^^  It  is  no  exaggeration  to  say 
that  if  the  courts  should  now  be  deprived  of  the 
power  to  protect  litigants  who  invoke  constitutional 
guaranties  and  should  be  compelled  to  enforce,  as 
valid  laws,  statutes  which  violate  the  limitations 


CONSTITUTIONAL    MORALITY  75 

upon  legislative  power  which  the  people  have  de- 
liberately embodied  in  their  fundamental  law,  our 
constitutions  would  become  dead  letters,  and  we 
might  as  well  turn  to  the  pure  and  unrestrained 
democracy  of  Greece  and  await  her  fate. 

In  an  inspiring  address  delivered  this  year  before 
the  New  York  State  Bar  Association  on  the  subject 
of  judicial  decisions  and  public  feeling,  Senator 
Root  eloquently  said:  "A  sovereign  people  which 
declares  that  all  men  have  certain  inalienable  rights, 
and  imposes  upon  itself  the  great  impersonal  rules 
of  conduct  deemed  necessary  for  the  preservation 
of  those  rights,  and  at  the  same  time  declares  that 
it  will  disregard  those  rules  whenever,  in  any  particu- 
lar case,  it  is  the  wish  of  a  majority  of  its  voters  to 
do  so,  establishes  as  complete  a  contradiction  to 
the  fundamental  principles  of  our  government  as  it 
is  possible  to  conceive.  It  abandons  absolutely 
the  conception  of  a  justice  which  is  above  majorities, 
of  a  right  in  the  weak  which  the  strong  are  bound-to 
respect.  It  denies  the  vital  truth  taught  by  religion 
and  realized  in  the  hard  experience  of  mankind,  and 
which  has  inspired  every  constitution  America  has 
produced  and  every  great  declaration  for  human 
freedom  since  Magna  Carta  —  the  truth  that 
human  nature  needs  to  distrust  its  own  impulses 
and  passions,  and  to  establish  for  its  own  control 
the  restraining  and  guiding  influence  of  declared 
principles  of  action." 

In  many  of  the  current  assaults  upon  the  judicial 
department,    in   support   often   of  sclicmes   having 


76  CONSTITUTIONAL  MORALITY 

their  birthplace  on  the  continent  of  Europe,  we 
find  the  complaint  that  in  declaring  statutes  uncon- 
stitutional the  courts  in  this  country  —  state  and 
federal  —  exercise  greater  power  than  the  courts  of 
other  countries  are  authorized  to  exercise.  As  if 
that  were  an  argument  against  American  institu- 
tions! Every  schoolboy  knows  that  the  framers 
intended  that  our  government  should  differ  from 
every  other  government  in  the  world.  The  founders 
not  only  intentionally  departed  from  the  examples 
of  existing  governments,  but  anxiously  sought  to 
establish  a  new  form  of  republican  government, 
which  would  perpetuate  the  spirit  of  the  Declaration 
of  Independence,  secure  the  inahenable  rights  of 
the  individual,  and  protect  the  minority  against 
the  oppression  or  tyranny  of  the  majority.  It  was 
because  these  rights  of  the  individual  against  ma- 
jorities and  every  form  of  governmental  power  were 
to  be  made  secure  and  sacred,  as  the  founders 
believed,  that  we  were  to  differ  from  other  govern- 
ments. And  the  essential  and  effective  feature  of 
that  difference  was  to  he  in  the  power  vested  in 
the  judicial  department  to  uphold  and  protect  these 
rights.  High  sounding  declarations  of  the  rights  of 
man  would  mean  very  little  if  they  were  not  to  be 
enforceable  by  the  courts. 

When  our  form  of  government  is  compared  with 
that  of  other  countries,  and  we  are  told  that  in 
England  or  in  France  or  elsewhere  so-called  pro- 
gressive measures  have  been  forced  into  immediate 
operation  by  the  will  of  the  majority,  and  that  the 


CONSTITUTIONAL    MORALITY  77 

courts  there  were  powerless  to  interfere,  is  it  seri- 
ously intended  to  suggest  to  the  people  of  the  United 
States  that  they  should,  therefore,  cast  aside  all 
constitutional  restraints,  all  their  ancient  and  honest 
constitutional  principles,  and  leave  the  protection 
of  hfe,  liberty  and  property  wholly  in  the  hands  of 
the  legislative  branch?  Are  there  not  still  certain 
rights  which  even  those  who  are  assailing  our  institu- 
tions, under  the  protection  of  the  very  Constitution 
they  deride,  would  want  to  have  protected  by  our 
courts?  When  it  is  urged  that  the  courts  should 
not  have  power  to  declare  an  act  unconstitutional, 
but  should  be  compelled  to  enforce  all  legislative 
enactments  although  some  of  them  might  conflict 
with  the  Constitution,  is  it  realized  that  the  bill  of 
rights  would  then  be  left  to  the  arbitrary  discretion 
or  caprice  of  the  legislature,  and  that  consequently 
it  would  be  of  no  more  practical  protection  to  the 
individual  than  the  paper  constitutions  of  some  of 
the  South  American  republics  which,  too,  contain 
eloquent  declarations  of  the  rights  of  the  individual? 
Is  it  forgotten  or  overlooked  that  in  England  and 
France  and  all  the  other  countries  with  whose 
systems  of  government  ours  is  being  compared, 
the  legislative  power  is  practically  supreme,  and 
that  it  can  outlaw  or  disseize  or  imprison  at  its 
mere  will  —  that  it  can  deny  religious  liberty, 
abridge  the  freedom  of  speech  or  of  the  press,  pass 
bills  of  attainder  and  ex  post  facto  laws,  suspend  the 
writ  of  habeas  corpus,  impose  cruel  and  unusual  pun- 
ishments, deny  to  the  individual  accused  of  crime  the 


78  CONSTITUTIONAL    MORALITY 

right  to  a  jury- trial  or  even  any  hearing  at  all,  con- 
fiscate private  property  without  compensation,  and 
impair  the  obligation  of  contracts? 

Let  us,  for  example,  suppose  that  Congress  or  a 
state  legislature  saw  fit  to  imprison  those  who  did 
not  profess  the  religion  of  the  majority,  or  observe 
its  forms  and  tenets.  Who  could  then  protect  the 
minority  against  such  tyrannical  enactments  except 
the  courts,  and  how  could  the  courts  shield  them  save 
by  declaring  the  statute  unconstitutional  and  void 
and  refusing  to  enforce  it?  We  have  only  to  go  back 
a  few  generations  to  find  just  such  laws  in  England 
and  in  the  American  colonies,  and  it  is  the  repetition 
of  them  that  our  constitutions  seek  to  prevent.  Sup- 
pose again  that  Congress  or  a  state  legislature  should 
pass  a  statute  abridging  the  freedom  of  speech  or  of 
the  press  and  making  those  who  violated  the  statute 
subject  to  criminal  prosecution  and  imprisonment. 
How  could  the  individual  be  then  protected  except 
by  the  judiciary,  and  how  could  the  judiciary  protect 
him  unless  by  exercising  the  power  to  declare  the 
statute  unconstitutional? 

Do  the  agitators  who  are  attacking  our  constitu- 
tional system  explain  to  their  listeners  that  in  the 
foreign  governments  with  which  they  are  making 
comparisons  the  legislative  power  could  compel 
workmen  in  any  trade  to  work  as  many  hours  a  day, 
at  such  rates  of  wages,  and  under  such  conditions  as 
the  majority  saw  fit  to  enact?  Suppose  that  the 
Pennsylvania  legislature  should  pass  a  statute  com- 
pelling laborers  in  coal  mines  to  labor  twelve  or 


CONSTITUTIONAL    MORALITY  79 

more  hours  a  day  for  a  compensation  fixed  by  it 
and  providing  that  refusal  should  constitute  a  crime. 
Or  similarly  in  the  case  of  railroad  employees.  In 
doing  so,  the  legislature  would  find  a  precedent  in 
the  famous  English  Statute  of  Labourers  as  well  as 
in  numerous  other  European  enactments.  The 
Pennsylvania  legislature  might  pass  an  act,  similar 
to  that  enacted  by  the  British  parliament  in  17-20 
and  again  in  1800,  making  it  a  crime  for  laborers  to 
combine  to  obtain  an  advance  of  wages  or  to  lessen 
or  alter  their  hours  of  work.  Is  it  inconceivable 
that  the  time  may  come  when  the  majority  of  the 
voters  in  Pennsylvania  will  believe  that  it  is  im- 
perative thus  to  regulate  labor  in  coal  mines  and  on 
the  railroads,  both  of  which  industries  are  indis- 
pensable, serve  every  household  in  the  state,  affect 
every  individual,  rich  or  poor,  and  compel  all  to  pay 
tribute.!^  Might  not  prejudice  and  self-interest  tempt 
or  impel  to  such  a  statute,  and  might  not  the  ma- 
jority enact  it,  particularly  if  those  affected  were 
aliens  without  political  power?  Is  it  inconceivable 
that  the  owners  of  the  coal  mines  and  the  railroads 
may  some  day  control  a  majority  in  the  legislature? 
But  how  could  these  miners  and  railroad  employees 
be  protected  from  such  enactments  and  criminal 
prosecutions  thereunder  unless  the  courts  had  the 
power  to  declare  statutes  unconstitutional  and  to 
refuse  to  enforce  them  because  depriving  the  indi- 
vidual of  his  constitutional  rights? 

In  nine  cases  out  of  ten  the  answer  to  these  sug- 
gestions by  those  who  to-day  are  assailing  the  judicial 


80  CONSTITUTIONAL    MORALITY 

department  would  undoubtedly  be  that  no  one 
intends  to  go  to  any  such  extreme,  and  that  no  one 
wishes  to  be  placed  or  to  place  any  one  else  entirely 
at  the  mercy  of  the  legislature.  Thus,  they  would 
concede  that  some  rights  should  still  be  safeguarded 
by  the  courts.  But  does  not  this  answer  contain 
the  gist  of  the  whole  problem  and  the  whole  prin- 
ciple and  virtue  of  the  American  system  of  constitu- 
tional restraints.^  If  the  critics  of  our  system 
would  have  some  rights,  and  particularly  their  own, 
protected  by  the  courts,  must  they  not  then  confess 
that  in  truth  they  only  wish  changes  where  the 
rights  of  others  are  concerned,  and  that  they  would 
cling  to  the  Constitution  and  invoke  the  protection 
of  the  judicial  power  in  all  those  respects  in  which 
their  own  personal  liberty  and  their  own  personal 
and  property  rights  are  affected .^^  Chief  Judge  Cul- 
len  of  the  New  York  Court  of  Appeals  recently  said 
that  "the  great  misfortune  of  the  day  is  the  mania 
for  regulating  all  human  conduct  by  statute,  from 
responsibility  for  which  few  are  exempt,  since  many 
of  our  most  intelligent  and  highly  educated  citizens, 
who  resent  as  paternalism  and  socialism  legislative 
interference  with  affairs  in  which  they  are  inter- 
ested, are  most  persistent  in  the  attempt  to  regulate 
by  law  the  conduct  of  others."  ^ 

I  do  not  doubt  that  if  we  could  have  an  exhaustive 
debate  before  a  great  tribunal  of  American  public 
opinion  and  could  step  by  step  analyze  and  sift  the 
arguments  against  the  judicial  power  in  constitu- 

^  2o4  New  York  Reports,  p.  534. 


CONSTITUTIONAL    MORALITY  81 

tional  cases,  we  would  find  in  the  final  analysis  that 
those  who  are  so  fiercely  charging  the  courts  with 
usurping  power  by  refusing  to  enforce  unconstitu- 
tional enactments  would  still  want  the  continued 
protection  of  the  courts  so  far  as  their  own  constitu- 
tional rights  and  liberties  were  concerned,  and  that 
they  were  only  asking  modification  and  curtailment 
in  respect  of  the  rights  and  liberties  of  others.  I  am 
confident  that  if  it  were  left  to  the  people  of  the 
United  States  to  determine  by  their  votes  the  simple 
question  whether  they  would  place  in  the  hands  of 
Congress  or  of  their  state  legislatures  the  funda- 
mental, elemental,  inahenable  rights  which  every 
American  citizen  now  enjoys  —  the  inalienable  rights 
proclaimed  in  the  Declaration  of  Independence  — 
an  overwhelming  vote  would  be  cast  against  any 
such  change.  Indeed,  support  for  this  conviction 
may  be  found  in  the  recent  experience  of  Australia, 
that  hotbed  of  radicalism.  An  attempt  by  con- 
stitutional amendment  to  curtail  the  power  of  the 
judiciary  in  labor  controversies  and  to  confer  upon 
the  Australian  parliament  all  power  necessary  to 
deal  with  labor  matters  was  there  the  subject  of 
a  referendum  and  met  with  a  decisive  defeat  at 
the  polls.  Are  we  likely  to  be  less  conservative  than 
the  Australians,  or  to  be  less  mindful  of  the  necessity 
for  wise  constitutional  guaranties  and  restraints .^^ 

The  truth  is  that  our  constitutions,  national  and 
state,  do  not  stand  in  the  way  of  any  fair  and 
just  exercise  of  what  is  called  the  police  power,  or  of 
measures  for  social  progress  or  social  justice,  and  that 


82  CONSTITUTIONAL    MORALITY 

they  do  not  prevent  reasonable  and  just  regulations 
tending  to  secure  the  health  and  promote  the  welfare 
of  the  community  at  large,  or  the  enactment  of 
proper  and  reasonable  factory  laws  or  proper  and 
reasonable  workmen's  compensation  acts.  The  main 
source  of  trouble  is  that  the  statutes  which  the 
courts  are  compelled  to  refuse  to  enforce  are  very 
often  hastily  and  crudely  drawn,  and  are  often  in- 
herently unreasonable  and  unjust. 

But,  even  if  this  be  not  so;  even  if  the  people,  after 
full  statement  of  the  facts  and  thorough  explanation 
of  the  effect  of  the  change,  upon  mature  considera- 
tion desire  to  vest  greater  power  in  our  legislatures, 
or  to  curtail  the  power  of  the  courts,  the  means  are 
within  their  reach.  In  New  York  and  in  other 
states,  the  Constitution  can  be  easily  amended 
within  two  years. 

It  has  been  repeatedly  asserted  that  the  Con- 
stitution of  the  United  States  has  become  practi- 
cally unamendable,  when  as  a  matter  of  fact  its 
amendment  does  not  involve  any  greater  difficulties 
than  were  intended  or  than  would  seem  reasona- 
bly necessary,  or  than  would  be  provided  if  we  were 
now  framing  a  new  national  constitution.  The  pre- 
scribed machinery  of  a  vote  by  two-thirds  of  both 
houses  of  Congress  and  ratification  by  three-fourths 
of  the  states  simply  compels  deliberation  and  pre- 
vents hasty  and  unconsidered  action.  If  the  people 
of  the  country  really  desire  a  particular  amendment 
to  the  Constitution  of  the  United  States,  it  ought  to 
be  readily  obtainable  within  less  than  two  years. 


CONSTITUTIONAL    MORALITY  83 

Thus,  the  first  ten  amendments  were  proposed  by 
Congress  in  September,  1789,  and  were  adopted  in 
those  days  of  slow  travel  and  difficult  communi- 
cation by  eight  states  within  six  months  and  by 
the  requisite  three-fourths  within  two  years.  The 
twelfth  amendment,  proposed  in  i8o3,  was  ratified 
in  nine  months.  The  thirteenth  amendment,  pro- 
posed by  Congress  in  i865,  was  ratified  by  the 
legislatures  of  twenty-seven  out  of  the  then  thirty- 
six  states  within  ten  months;  and  the  fifteenth 
amendment,  the  latest,  proposed  in  February,  1869, 
was  ratified  by  twenty-nine  out  of  the  thirty-seven 
states  within  one  year.  The  delay  in  the  adoption 
of  the  proposed  sixteenth  amendment  authorizing 
Congress  to  levy  an  income  tax  is  due  wholly  to  the 
fact  that  there  is  a  serious  difference  of  opinion  as 
to  whether  or  not  this  power  should  be  conferred, 
although  the  advocates  of  the  amendment  con- 
fidently proclaimed  the  existence  of  an  almost 
universal  desire  on  the  part  of  the  people  for  such 
an  amendment  to  the  Constitution.^ 

One  of  the  most  insidious  suggestions  that  can 
possibly  be  made  to  the  people  at  large  is  that  there 
is  an  insurmountable  difficulty  in  securing  amend- 
ments to  our  constitutions,  just  as  misleading  and 
dangerous  as  it  is  for  them  to  be  told  that  their 

1  Since  this  address  was  delivered,  the  sixteenth  amendment  has  been 
ratified.  It  was  proposed  by  Congress  July  16,  1909,  and  declared  efTec- 
tive  February  26,  igiS.  The  seventeenth  amendment  was  proposed  by 
Congress  May  i5,  1912,  and  declared  effective  May  3i,  igiS.  In  view  of 
this  demonstration,  it  should  certainly  not  be  any  longer  urged  that  the 
Constitution  of  the  United  States  is  practically  unaraendablc. 


84  CONSTITUTIONAL    MORALITY 

desires  are  being  thwarted  by  the  judiciary  and  that 
they  must  accomphsh  reforms  either  by  coercing 
the  courts  or  by  undermining  the  foundations  of 
their  constitutions.  The  future  contentment  of 
the  people  requires  that  they  shall  feel  that  the 
governments,  state  and  federal,  are  their  govern- 
ments, that  they  themselves  are  ultimately  the 
sovereign  power,  and  that  they  are  at  liberty  to 
amend  the  organic  law  from  time  to  time  as  their 
mature  and  deliberate  judgment  shall  deem  neces- 
sary or  desirable.  All  that  the  conservatives  can 
ask  or  do  ask  is  that  the  people  shall  act  deliberately 
and  under  circumstances  calculated  to  afford  time 
and  opportunity  for  full  explanation  and  a  full  under- 
standing of  the  scope  and  tendency  of  the  proposed 
changes,  to  the  end  that  errors  may  be  discovered 
and  exposed,  that  theorizing,  sentimentalism,  clamor 
and  prejudice  may  exhaust  themselves,  and  that  the 
sober  second  thought  of  every  part  of  the  country 
may  be  asserted.  If  it  be  then  determined  to 
amend  our  constitutions,  even  to  the  extent  of 
placing  life,  hberty  and  property  at  the  unrestrained 
discretion  and  mercy  of  our  legislators,  the  will  of 
the  sovereign  people  will  have  to  be  obeyed.  Let 
us  hope  and  pray,  however,  that  when  amendments 
are  adopted,  they  will  be  conservative  and  wise,  that 
the  rights  of  the  minority  as  against  the  majority 
will  not  be  heedlessly  sacrificed  for  the  temporary 
advantage  of  one  class  over  another,  and  that  it 
will  be  appreciated  that  individual  liberty  should 
be  the  vital  concern  of  every  man,  rich  or  poor,  as 


CONSTITUTIONAL    MORALITY  85 

being  essential  to  the  perpetuation  of  the  institu- 
tions which  we  cherish  as  pecuharly  and  preemi- 
nently American.  Let  us  especially  try  to  avoid 
permitting  any  class  to  make  use  of  constitutional 
amendments  or  of  statutory  enactments  for  its  own 
special  purposes.  Let  us,  whilst  meeting  in  full 
sympathy,  generosity  and  charity  the  legitimate 
demands  of  the  laboring  classes  and  of  the  poor  and 
humble,  nevertheless  keep  our  eyes  open  to  prevent 
any  such  vicious  results  as  would  arise  from  con- 
stitutional or  statutory  provisions  framed  nominally 
for  the  benefit  of  labor  but  really  for  the  purpose  of 
serving  the  interests  of  a  particular  class  against 
another,  as  we  have  seen  was  the  case  in  the  New 
York  tenement-house  legislation  of  i884.  In  the 
meantime,  pending  such  amendments  in  the  due, 
orderly  and  reasonable  course  prescribed  by  our 
constitutions,  let  us  be  faithful  and  devoted  to  our 
constitutional  system,  which  for  more  than  a  cen- 
tury has  carried  us  through  every  storm  and  so  often 
"in  spite  of  false  lights  on  the  shore."  Let  us  also 
be  truthful  and  fair  and,  if  possible,  temperate  in 
our  criticism  of  all  public  officials,  whether  legis- 
lative, executive,  or  judicial. 

Finally,  a  word  about  the  special  duty  of  our 
profession.  It  is  not  the  pulpit  nor  the  press,  but 
the  law  which  reaches  and  touches  every  fibre  of 
the  whole  fabric  of  life,  which  surrounds  and  guards 
every  right  of  the  individual,  wliicli  grasps  the 
greatest  and  the  least  of  human  affairs,  and  which 
comprehends  the  whole  community  and  every  human 


86  CONSTITUTIONAL    MORALITY 

right.  We  lawyers,  if  worthy  of  our  profession,  are 
in  duty  bound  not  merely  to  defend  constitutional 
guaranties  before  the  courts  for  individual  clients, 
but  to  teach  the  people  in  season  and  out  of  season 
to  value  and  respect  the  constitutional  rights  of 
others  and  to  respect  and  cherish  the  institutions 
which  we  have  inherited.  It  is  our  duty  to  preach 
constitutional  morality  to  the  rich  and  to  the  poor, 
to  all  trades  and  to  all  professions,  to  all  ranks  and 
to  all  classes,  in  the  cities  and  on  the  plains.  It  is 
for  us  to  convince  the  members  of  every  class  that, 
in  the  long  run,  disregard  of  the  fundamental  rights 
of  others  would  be  in  conflict  with  their  own  perma- 
nent welfare  and  happiness,  and  cannot  be  permitted 
if  we  are  to  remain  a  free  people.  What  higher  duty, 
what  nobler  task  could  engage  us  than  to  teach 
the  value  and  sacredness  of  the  ancient  and  honest 
principles  of  justice  embodied  in  our  constitu- 
tions, immortal  as  the  eternal  truths  from  which 
they  derive  their  origin,  and  to  preach  to  all  classes 
the  virtue  of  political  justice  and  self-imposed  poli- 
tical restraints,  without  which  there  can  be  no  true 
constitutional  morality. 


THE  ELEVENTH  AMENDMENT  ^ 

OF  the  important  questions  of  constitutional  law 
now  before  the  country,  none  more  vitally  affects 
the  peace  and  harmony  of  our  dual  system  of  gov- 
ernment than  that  of  the  power  of  a  federal  court  to 
enjoin  a  state  officer  from  enforcing  the  provisions  of 
a  state  statute  which  is  in  conflict  with  the  Consti- 
tution of  the  United  States.  This  question  usually 
arises  in  connection  with  the  eleventh  article  of 
amendment,  which  provides  that  "the  judicial  power 
of  the  United  States  shall  not  be  construed  to  extend 
to  any  suit  in  law  or  equity,  commenced  or  prose- 
cuted against  one  of  the  United  States  by  citizens  of 
another  state,  or  by  citizens  or  subjects  of  any 
foreign  state."  Serious  controversies  regarding  the 
issuance  of  injunctions  by  federal  courts  against 
state  officers  have  arisen  in  New  York,  North 
Carolina,  Alabama,  Missouri,  Kansas,  Minnesota, 
and  other  states.  A  convention  of  attorneys-general 
from  a  number  of  states,  held  at  St.  Louis  in  Sep- 
tember and  October,  1907,  adopted  a  memorial  to 
the  President  and  Congress  praying  that  the  juris- 
diction of  the  circuit  courts  of  the  United  States 
might  be  curtailed  in  respect  of  suits  brought  to 

'  Address  before  the  New  York  State  Bar  Association  at  its  tliirty-first 
annual  meeting  held  in  New  York,  January  25,  igo8. 


88  ELEVENTH    AMENDMENT 

restrain  state  officers  from  enforcing  state  laws  or 
the  orders  of  state  administrative  boards.  The 
President  in  liis  annual  message  to  Congress  called 
the  matter  to  the  attention  of  that  body,  and  stated 
that  discontent  was  often  expressed  with  the  use  of 
the  process  of  injunction  by  the  courts  where  state 
laws  were  concerned.  The  assembling  of  Congress 
was  marked  by  the  introduction  of  numerous  bills 
to  curtail  the  power  of  the  federal  courts  to  issue 
injunctions  and  by  the  offering  of  several  joint 
resolutions  to  amend  the  Constitution  of  the  United 
States,  which  had  the  same  object.  The  question 
will,  perhaps,  figure  prominently  in  the  next  presi- 
dential campaign.  It  may,  therefore,  be  appropriate 
to  review  at  this  time  the  history  of  the  eleventh 
article  of  amendment  to  the  Constitution  of  the 
United  States  in  order  to  see  what  hght  that  history 
throws  upon  the  purpose  of  its  framers.  Did 
they  intend,  in  prohibiting  suits  by  an  individual 
against  a  state,  to  deny  to  the  courts  of  the  United 
States  the  power  to  enjoin  a  state  officer  from  en- 
forcing a  state  statute  in  conflict  with  the  Constitu- 
tion of  the  United  States.^^ 

In  1787  and  1788,  when  the  adoption  of  the 
Constitution  was  under  consideration  by  the  people 
of  the  United  States,  conflicting  views  were  enter- 
tained as  to  the  suability  of  a  state  by  an  individual 
for  the  recovery  of  claims  against  it.  Hamilton, 
Madison  and  Marshall  expressed  the  opinion  that 
a  state  would  not  be  suable  by  an  individual  under 
the  Constitution  as  drafted.     A  number  of  prominent 


ELEVENTH    AMENDMENT  89 

men,  conspicuous  among  whom  were  Edmund 
Pendleton,  Patrick  Henry  and  George  Mason,  were 
of  opinion  that  the  language  of  the  judicial  clause 
conferred  jurisdiction  to  entertain  and  determine 
such  a  suit.  Some  urged  this  as  an  objection  to  the 
Constitution.  Others,  including  James  Wilson  of 
Pennsylvania  and  Edmund  Randolph  of  Virginia, 
two  of  the  most  distinguished  lawyers  and  publicists 
of  the  day  and  members  of  the  Constitutional  Con- 
vention, contended  not  only  that  jurisdiction  was 
conferred  but  that  it  was  wise  and  necessary  that 
such  jurisdiction  should  exist.  Wilson  urged  that 
"when  a  citizen  has  a  controversy  with  another 
state,  there  ought  to  be  a  tribunal  where  both  parties 
may  stand  on  a  just  and  equal  footing,"  and  Randolph 
argued  that  the  jurisdiction  would  tend  "to  render 
valid  and  effective  existing  claims,  and  secure  that  jus- 
tice, ultimately,  which  is  to  be  found  in  every  regular 
government. ' '  The  Constitution  of  the  United  States 
was  adopted  as  submitted  with  the  understanding 
that  amendments  would  be  promptly  proposed.  The 
First  Congress  submitted  twelve  amendments,  ten 
of  which  were  adopted,  but  the  suability  of  a  state 
was  not  mentioned  in  any  of  them. 

The  question  was  presented  for  judicial  decision  in 
1792  in  an  action  brought  by  Chisholm,  a  citizen  of  the 
state  of  South  Carolina,  against  the  state  of  Georgia 
in  the  Supreme  Court  of  the  United  States  under  its 
original  jurisdiction.^  The  action  was  in  assumpsit 
to  recover  a  debt.     The  court  then  consisted  of  Chief 

1  2  Dallas'  Reports,  p.  /jig. 


90  ELEVENTH    AMENDMENT 

Justice  Jay  and  Justices  Gushing,  Wilson,  Blair,  John- 
son and  Iredell.  On  February  i8,  1798,  the  court 
held,  Mr.  Justice  Iredell  alone  dissenting,  that  under 
the  Constitution  as  originally  adopted  a  state  could 
be  sued  in  that  court  by  a  citizen  of  another  state 
in  an  action  of  assumpsit  to  enforce  the  payment  of 
a  contract  debt.  This  decision ,  which  was  followed  bv 
the  commencement  of  the  suit  of  Vassal  vs.  Massa- 
chusetts, created  irritation  and  alarm  among  the 
states,  and  particularly  among  those  which  were 
heavily  burdened  with  debt.  The  anti-Federalist 
prints  were  loud  in  invectives  against  the  decision, 
which  was  termed  a  violation  of  the  sovereignty  of 
the  states,  and  it  was  declared  that  the  people  were 
"called  upon  to  draw  their  swords  against  this 
invasion  of  their  rights."  It  has  been  said,  though 
with  some  exaggeration,  that  "the  states  fairly  rose 
in  rebellion  against  the  decision."  Four  states 
formally  protested.  Although  Georgia  had  been 
the  first  state  to  invoke  the  original  jurisdiction  of 
the  Supreme  Court,  it  nevertheless  refused  to  appear 
in  the  Chisholm  suit,  and  filed  a  remonstrance  and 
protestation  against  the  exercise  of  jurisdiction. 
After  the  decision,  it  openly  defied  the  authority  of 
the  national  judiciary.  Indeed,  it  is  stated  by 
McMaster,  Cooley  and  other  writers  that  the  legisla- 
ture of  Georgia  at  once  passed  a  law  subjecting  to 
death  without  benefit  of  clergy  any  officer  who 
should  attempt  to  serve  a  process  in  any  suit  against 
the  state,  but  no  record  of  any  such  statute  can  be 
found.     Probably,  as  some  one  has  suggested,  the 


ELEVENTH    AMENDMENT  91 

supposed  law  was  a  bill  which  passed  only  the  lower 
branch  of  the  legislature.  At  all  events,  the  legisla- 
tures of  Virginia,  Massachusetts  and  Connecticut 
instructed  their  senators  and  representatives  to 
secure  the  adoption  of  an  amendment  to  the  Con- 
stitution which  should  j^revent  suits  against  a  state 
by  an  individual. 

On  February  20,  1798,  two  days  after  the  opinions 
in  Chisholm  vs.  Georgia  were  delivered,  a  resolution 
was  offered  in  the  United  States  Senate  proposing 
an  amendment  of  the  Constitution  in  the  following 
terms:  "The  judicial  power  of  the  United  States  shall 
not  extend  to  any  suits  in  law  or  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  state  or  by  citizens  or  subjects 
of  any  foreign  state." 

The  proposed  amendment  was  debated  to  some 
extent  in  the  Second  Congress,  but  it  was  not  passed. 
In  the  Third  Congress,  on  January  2,  179^,  Caleb 
Strong,  one  of  the  senators  from  Massachusetts, 
moved  the  adoption  of  a  resolution  wliich  changed 
the  form  of  the  proposed  amendment  so  as  to  read 
as  follows:  "The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law 
or  equity,  commenced  or  prosecuted  against  one  of 
the  United  States  by  citizens  of  another  state,  or 
by  citizens  or  subjects  of  any  foreign  state." 

The  amendment  was  finally  accepted  in  this  form 
on  March  li,  179/i,  and  was  at  once  submitted  to 
the  legislatures  of  the  several  states  for  ratification, 
but  up  to  March,  1797,  there  were  still  eight  states 


92  ELEVENTH    AMENDMENT 

which  had  not  acted  upon  it,  probably  because  the 
pohtical  clamor  had  subsided,  and  there  was  no  longer 
any  demand  for  amendment.  In  fact,  Congress  had 
to  request  the  President  to  communicate  with  the 
outstanding  states  upon  the  subject.  Finally,  in  a 
message  from  President  Adams  to  Congress  dated 
January  8,  1798,  the  proposed  amendment  was  de- 
clared to  have  been  ratified  by  three-fourths  of  the 
states,  and  it  thereupon  became  the  eleventh  article 
of  amendment  to  the  Constitution  of  the  United 
States.  New  Jersey  and  Pennsylvania  had  refused 
to  ratify  it,  while  South  CaroUna  and  Tennessee  had 
taken  no  action. 

The  unusual  and  peculiar  wording  of  the  amend- 
ment first  attracts  attention.  Instead  of  declaring 
how  the  Constitution  shall  read  in  the  future,  it 
declares  how  it  shall  "not  be  construed."  This 
phraseology  was  used  for  political  reasons  and  as  a 
concession  to  the  susceptibilities  of  the  advocates  of 
state  rights.  Extremists  wanted  a  declaration  that 
would  not  only  overrule  the  recent  construction  of 
the  Constitution  by  the  Supreme  Court  and  deny 
that  such  a  power  had  ever  existed,  but  would  also 
oust  all  jurisdiction  in  pending  as  well  as  in  future 
cases.  The  amendment,  therefore,  does  not  purport 
to  amend  or  alter  the  Constitution,  but  to  maintain 
it  unchanged,  while  controlling  its  scope  and  effect 
by  authoritatively  declaring  how  it  shall  not  be 
construed. 

Speaking  of  the  language  of  the  amendment, 
Cliief  Justice  Marshall  said  in  the  case  of  Cohens 


ELEVENTH    AMENDMENT  93 

VS.  Virginia:  "It  is  a  part  of  our  history,  that, 
at  the  adoption  of  the  Constitution,  all  the  states 
were  greatly  indebted;  and  the  apprehension  that 
these  debts  might  be  prosecuted  in  the  federal 
courts  formed  a  very  serious  objection  to  that 
instrument.  Suits  were  instituted,  and  the  court 
maintained  its  jurisdiction.  The  alarm  was  general; 
and,  to  quiet  the  apprehensions  that  were  so  exten- 
sively entertained,  this  amendment  was  proposed  in 
Congress,  and  adopted  by  the  state  legislatures. 
That  its  motive  was  not  to  maintain  the  sovereignty 
of  a  state  from  the  degradation  supposed  to  attend 
a  compulsory  appearance  before  the  tribunal  of  the 
nation,  may  be  inferred  from  the  terms  of  the  amend- 
ment. It  does  not  comprehend  controversies  be- 
tween two  or  more  states,  or  between  a  state  and 
a  foreign  state.  The  jurisdiction  of  the  court  still 
extends  to  these  cases:  and  in  these  a  state  may 
still  be  sued.  We  must  ascribe  the  amendment, 
then,  to  some  other  cause  than  the  dignity  of  a 
state.  There  is  no  difficulty  in  finding  this  cause. 
Those  who  were  inhibited  from  commencing  a  suit 
against  a  state,  or  from  prosecuting  one  which 
might  be  commenced  before  the  adoption  of  the 
amendment,  were  persons  who  might  probably  be 
its  creditors.  There  was  not  much  reason  to  fear 
that  foreign  or  sister  states  would  be  creditors  to 
any  considerable  amount,  and  there  was  reason  to 
retain  the  jurisdiction  of  the  court  in  those  cases, 
because  it  might  be  essential  to  the  preservation 
of  peace.     The  amendment,  therefore,  extended  to 


94  ELEVENTH    AMENDMENT 

suits  commenced  or  prosecuted  by  individuals,  but 
not  to  those  brought  by  states. 

"The  first  impression  made  on  the  mind  by  this 
amendment  is,  that  it  was  intended  for  those  cases, 
and  for  those  only,  in  which  some  demand  against  a 
state  is  made  by  an  individual  in  the  courts  of  the 
Union.  If  we  consider  the  causes  to  which  it  is  to 
be  traced,  we  are  conducted  to  the  same  conclusion. 
A  general  interest  might  well  be  felt  in  leaving  to  a 
state  the  full  power  of  consulting  its  convenience  in 
the  adjustment  of  its  debts  or  of  other  claims  upon 
it;  but  no  interest  could  be  felt  in  so  changing  the 
relations  between  the  whole  and  its  parts,  as  to  strip 
the  government  of  the  means  of  protecting,  by  the 
instrumentality  of  its  courts,  the  Constitution  and 
laws  from  active  violation."^ 

It  will  also  be  observed  that  the  amendment  does 
not  refer  to  suits  against  a  state  by  one  of  its  own 
citizens.  This  was  undoubtedly  because  the  Con- 
stitution did  not  extend  the  judicial  power  of  the 
United  States,  when  dependent  upon  the  character 
of  the  parties,  to  controversies  between  a  state  and 
its  own  citizens,  but  only  to  controversies  between 
a  state  and  citizens  of  another  state  or  citizens  or 
subjects  of  foreign  states.  The  distinction  between 
jurisdiction  dependent  upon  the  nature  or  subject 
matter  of  the  controversy  irrespective  of  the  character 
of  the  parties,  such  as  cases  arising  under  the  Con- 
stitution, laws  and  treaties  of  the  United  States, 
and  jurisdiction  dependent  upon  the  character  of 

^  6  Wheaton's  Reports,  pp.  406-/107. 


ELEVENTH    AMENDMENT  95 

the  parties  irrespective  of  the  nature  or  subject 
matter  of  the  controversy,  had  probably  not  then 
been  as  clearly  recognized  as  was  subsequently 
done  by  Chief  Justice  Marshall.  The  failure  of  the 
eleventh  amendment  to  mention  suits  against  a  state 
by  its  own  citizens  gave  rise  nearly  one  hundred 
years  later  to  the  contention  that  a  state  could  be 
sued  in  a  circuit  court  of  the  United  States  by  one 
of  its  own  citizens  in  a  case  arising  under  the  Con- 
stitution. This  was  urged  at  the  October  term, 
1889,  in  Hans  vs.  Louisiana  and  North  Carolina  vs. 
Temple,^  but  the  court  overruled  the  contention 
and  held  that  a  state  could  not  be  sued  by  an 
individual  in  a  United  States  court  even  in  a 
case  arising  under  the  Constitution.  Mr.  Justice 
Bradley  delivered  the  opinion  of  the  court.  He 
criticized  the  reasoning  of  the  majority  in  Chisholm 
vs.  Georgia,  and  upheld  the  dissenting  opinion  of 
Mr.  Justice  Iredell  to  the  effect  that,  under  the 
Constitution  as  originally  adopted,  no  suit  could 
be  maintained  against  a  state  by  an  individual  to 
enforce  its  debts  except  by  its  consent.  Mr.  Justice 
Harlan,  however,  while  he  concurred  in  holding  that 
a  suit  directly  against  a  state  by  one  of  its  own 
citizens  to  enforce  a  debt  was  not  within  the  judicial 
power  of  the  United  States,  criticized  the  comments 
made  by  Mr.  Justice  Bradley  upon  the  decision  in 
Chisholm  vs.  Georgia  as  not  necessary  to  the  deter- 
mination of  the  case,  and  expressed  the  opinion 
that  the  prior  decision  was  based  upon  a  sound  inter- 

1  i3/i  United  States  Reports,  pp.  i,  22. 


90  ELEVENTH    AMENDMENT 

pretation  of  the  Constitution   as  that  instrument 
was  then  worded. 

It  has  been  stated  in  opinions  of  the  Supreme 
Court  that  a  state  can  be  sued  in  a  court  of  the 
United  States  by  an  individual  if  it  waives  its  im- 
munity and  consents  to  be  sued.  But  it  is  difficult 
to  perceive  how  the  consent  or  waiver  of  a  state 
can,  in  any  case  and  under  any  circumstances,  confer 
upon  the  federal  courts  jurisdiction  of  a  suit  against 
it  by  a  citizen  of  another  state  or  a  citizen  or  subject 
of  a  foreign  state  in  the  face  of  the  imperative  man- 
date of  the  amendment  that  "the  judicial  power  of 
the  United  States  shall  not  be  construed  to  extend  to" 
any  such  suit.  It  is  true  that  the  court  in  the  case 
of  Clark  vs.  Barnard  said  that  the  immunity  of  a 
state  from  suit  in  a  federal  court  was  a  personal 
privilege  which  it  might  waive  at  pleasure  and 
that  its  appearance  as  a  party  defendant  in  a 
court  of  the  United  States  would  be  a  voluntary 
submission  to  its  jurisdiction,^  but  in  that  case  the 
state  intervened  as  an  actor  and  its  intervention 
was  such  that  it  could  be  treated  substantially  as 
a  plaintiff  and  the  jurisdiction  sustained  on  the 
ground  that  a  state  may  sue  an  individual  in  a 
federal  court.  Although  in  the  more  recent  case  of 
Gunter  vs.  Atlantic  Coast  Line,-  Mr.  Justice  White, 
delivering  the  opinion  of  the  court,  declared  it  to  be 
an  elementary  proposition  that  a  state  could  waive 
its  immunity,  it  will  be  observed  that  in  that  case 

^  io8  United  States  Reports,  p.  447- 

2  200  United  States  Reports,  pp.  283,  284. 


ELEVENTH    AMENDMENT  97 

the  suit  was  in  fact  against  an  officer  of  the  state 
of  Soutli  Carohna,  and  that  the  state  itself  was 
not  a  party  to  the  record.  It  seems  to  me,  with 
all  deference,  that  the  court  has  not  yet  squarely 
passed  upon  the  point,  nor,  so  far  as  I  know,  has 
it  ever  questioned  the  fundamental  principle  that 
a  federal  court  cannot  exercise  jurisdiction  in  any 
case  to  which  the  judicial  power  of  the  United 
States,  as  delegated  and  defined  in  the  Constitution, 
does  not  extend.  An  entirely  different  question  is 
presented  when  we  consider  whether  an  officer  of 
a  state  can  consent  or  be  authorized  to  consent  to 
be  sued  in  a  federal  court;  in  other  words,  whether 
he  can  waive  the  defense  that  the  state  is  a 
necessary  party  to  the  suit.  It  does  not  follow  that, 
because  a  state  cannot  be  sued,  it  may  not  autliorize 
its  agent  to  defend  on  the  merits  without  pleading 
the  absence  of  the  state  as  the  real  party  in  interest, 
and  the  denial  of  jurisdiction  over  the  state  as 
principal  does  not  necessarily  imply  a  denial  of 
jurisdiction  over  the  officer  when  doing  or  attempt- 
ing to  do  an  illegal  act  as  its  agent  or  represent- 
ative. So,  also,  a  different  question  is  presented 
under  the  later  amendments,  which  may  be  held  to 
have  qualified  the  eleventh  amendment  in  authoriz- 
ing Congress  to  enforce  their  provisions  by  appro- 
priate legislation.  As  to  that  point  I  am  not  now 
prepared  to  express  an  opinion. 

In  construing  the  eleventh  amendment  for  the 
purpose  of  ascertaining  its  true  intent  and  meaning, 
as  indeed  in  construing  most  of  the  provisions  of  the 


98  ELEVENTH    AMENDMENT 

Constitution  and  its  contemporaneous  amendments, 
reference  to  the  history  and  to  the  common  law  of 
England  is  generally  the  safest  guide  as  to  what  was 
understood  and  intended  at  the  time.  In  that  history 
will  be  found  the  true  sources  of  our  institutions, 
for  these  are  essentially  and  predominantly  English. 
The  legal  and  political  institutions  of  England  were 
constantly  in  the  minds  of  the  framers  and  of  the 
people.  The  common  law  had  long  been  regarded 
with  affection  and  reverence  as  the  birthright  of 
Americans  and  the  guardian  at  once  of  their  pri- 
vate rights  and  their  public  liberties.  Indeed,  the 
Continental  Congress,  assembled  in  October,  177/i, 
had  declared  the  colonies  entitled  as  of  right  to  the 
common  law. 

The  theory  of  the  immunity  of  a  state  or  of  the 
United  States  from  suit  by  an  individual  without 
its  consent  is  frequently  asserted  to  be  analogous 
to  the  monarchical  principle  as  to  the  immunity  of 
the  king  from  suit  without  his  consent  commonly 
expressed  in  the  maxim  that  "the  king  can  do  no 
wrong."  The  idea  seems  to  have  been  that  in 
England  it  would  be  considered  an  invasion  of  the 
sovereignty  of  the  crown  and  derogatory  to  its 
dignity  to  subject  the  king  to  a  suit  by  an  individual 
except  with  his  consent,  to  be  granted  or  refused  in 
his  arbitrary  discretion.  It  is  very  doubtful  whether 
any  such  idea  finds  support  in  the  common  law  or 
history  of  England,  or  in  the  traditional  usage  and 
experience  of  that  country  to  any  such  extent  as 
is  often  insisted  upon. 


ELEVENTH    AMENDMENT  99 

On  the  contrary,  it  had  long  been  regarded  in 
England  as  settled  law  that  the  subject  was  entitled 
to  an  effective  legal  remedy  for  any  invasion  of  his 
legal  rights  by  the  king  or  the  government.  He 
had  a  right  to  sue  the  king  for  the  restitution  of 
property  or  money  or  for  the  recovery  of  damages 
for  breach  of  contract,  and  to  sue  officers  of  the 
crown  for  any  tortious  acts.  The  practice  estab- 
lished for  centuries  had  been  to  present  to  the  king 
a  petition  praying  leave  to  sue  him,  and  the  custom 
had  been  for  the  king  as  of  course  to  endorse  on  the 
petition  his  fiat  that  right  be  done.  Thereafter  the 
action  proceeded  as  any  other  action  between  subject 
and  subject.  This  right  was  conceded  to  aliens  as 
well  as  to  subjects.  Although  the  leave  to  sue  was 
nominally  or  theoretically  granted  as  a  matter  of 
grace  and  not  upon  compulsion,  it  was  in  fact  the 
constitutional  duty  of  the  king  to  grant  it,  and  it 
was  seldom  denied.  Under  the  common  law,  the  sub- 
ject was  entitled  as  a  matter  of  right  —  as  one  of 
the  immemorial  liberties  of  Englishmen  —  to  inform 
his  king  of  the  nature  of  any  grievance,  and  there- 
upon, in  the  language  of  Blackstone,  "as  the  law 
presumes  that  to  know  of  any  injury  and  to  redress 
it  are  inseparable  in  the  royal  breast,  it  then  issues, 
as  of  course,  in  the  king's  own  name,  his  orders  to 
his  judges  to  do  justice  to  the  party  aggrieved." 

The  nature  of  the  proceeding  under  a  petition  of 
right  has  been  passed  upon  by  tlie  Supreme  Court 
of  the  United  States  in  several  cases,  and  its  decisions 
clearly  show  that  the  remedy  is  not  to  be  regarded 


100  ELEVENTH    AMENDMENT 

as  a  mere  matter  of  grace,  but  as  a  right  to  sue 
and  obtain  redress  in  the  class  of  cases  to  which  it 
apphes.  Thus,  Chief  Justice  Marshall,  delivering 
the  opinion  of  the  court  in  Marbury  vs.  Madison 
at  the  February  term,  i8o3,  said :  "In  Great 
Britain  the  king  himself  is  sued  in  the  respectful 
form  of  a  petition,  and  he  never  fails  to  comply 
with  the  judgment  of  his  court." ^  In  United 
States  vs.  O'Keefe  the  court  at  the  December 
term,  1870,  examined  the  nature  of  the  remedy 
in  construing  the  act  of  Congress  of  July  27,  1868, 
now  section  1068  of  the  United  States  Revised 
Statutes.  Mr.  Justice  Davis,  speaking  for  the 
court,  said:  "This  valuable  privilege,  secured  to 
the  subject  in  the  time  of  Edward  the  First,  is  now 
crystallized  in  the  common  law  of  England.  As 
the  prayer  of  the  petition  is  grantable  ex  debito 
justitiae,  it  is  called  a  petition  of  right,  and  is  a 
judicial  proceeding,  to  be  tried  like  suits  between 
subject  and  subject.  .  .  ,  It  is  of  no  consequence 
that,  theoretically  speaking,  the  permission  of  the 
crown  is  necessary  to  the  filing  of  the  petition, 
because  it  is  the  duty  of  the  king  to  grant  it,  and  the 
the  right  of  the  subject  to  demand  it.  And  we  find 
that  it  is  never  refused,  except  in  very  extraordinary 
cases,  and  this  proves  nothing  against  the  existence 
of  the  right.  ...  If  the  mode  of  proceeding  to 
enforce  it  be  formal  and  ceremonious,  it  is  never- 
theless a  practical  and  efficient  remedy  for  the 
invasion    by    the    sovereign    power    of    individual 

^  I  Cranch's  Reports,  p.  i63. 


ELEVENTH    AMENDMENT  101 

rights."^  And  in  the  later  case  of  Carlisle  vs.  United 
States  the  court  held  that,  under  the  proceeding 
known  as  the  petition  of  right,  the  government  of 
Great  Britain  accorded  "the  right  to  prosecute 
claims  against  such  government  in  its  courts"  not 
only  to  subjects  but  to  aliens.-  Later  still  in  the 
famous  case  of  United  States  vs.  Lee,  which  was  an 
action  at  law  to  recover  the  property  known  as  the 
Arlington  National  Cemetery  from  the  possession  of 
officers  of  the  United  States  government,  Mr.  Justice 
Miller,  delivering  the  opinion  of  the  court,  said:  "It 
is  believed  that  the  petition  of  right,  as  it  has  been 
practised  and  observed  in  the  administration  of 
justice  in  England,  has  been  as  efficient  in  securing 
the  rights  of  suitors  against  the  crown  in  all  cases 
appropriate  to  judicial  proceedings,  as  that  which 
the  law  affords  to  the  subjects  of  the  king  in  legal 
controversies  among  themselves."^ 

The  remedy  under  the  petition  of  right  has  con- 
tinued unimpaired  to  the  present  time.  The  pro- 
cedure is  now  regulated  by  the  statute  28  and  24 
Victoria,  ch.  34,  passed  July  3,  i860.  The  statute 
provides  that  the  king  by  means  of  this  proceeding 
may  be  sued  at  law  or  in  equity  as  the  particular 
case  may  require,  and  that  the  remedy  afforded 
"shall  comprehend  every  species  of  relief  claimed  or 
prayed  for  in  any  such  petition  of  right,  whether  a 
restitution  of  any  incorporeal  right,  or  a  return  of 
lands  or  chattels,  or  a  payment  of  money  or  damages, 

1  II  Wallace's  Reports,  p.  i83. 
2  16  Wallace's  Reports,  p.  i56.  *  io6  United  States  Reports,  p,  2o5. 


102  ELEVENTH    AMENDMENT 

or  otherwise."  In  granting  or  refusing  the  petition, 
the  king  acts  under  the  advice  of  the  home  secretary, 
and  the  latter  is  responsible  to  parliament  in  case 
he  shall  arbitrarily  or  wrongfully  advise  a  refusal. 

The  petition  of  right,  however,  is  available  only 
in  cases  in  which  it  is  sought  to  obtain  restitution  of 
lands  or  goods,  or,  if  restitution  cannot  be  given, 
compensation  in  money,  or  where  the  claim  arises 
out  of  a  contract,  as  for  goods  supplied  to  the  crown 
or  to  the  public  service.  It  does  not  extend  to  cases 
of  tort.  If  the  king  personally  should  commit  or 
threaten  to  commit  a  tort,  such,  for  example,  as  a 
trespass,  he  could  not  be  proceeded  against  in  either 
a  civil  or  a  criminal  court;  the  ordinary  law  courts 
have  no  means  of  restraining  or  punishing  him 
personally  or  affording  redress  against  him  for  any 
wrong  done  by  him  personally.  Not  only  does  the 
maxim  that  "the  king  can  do  no  wrong"  prevent 
any  ordinary  court  from  granting  relief  against  the 
king  himself,  but  the  courts  have  no  jurisdiction 
against  him  in  cases  of  tort. 

Nevertheless,  this  ancient  and  fundamental  maxim 
never  meant  that  the  king  was  above  the  law  or 
could  violate  the  law  with  impunity,  nor  was  it 
ever  understood  in  any  such  sense  as  that  everything 
done  by  the  king  was  to  be  regarded  as  just  and 
lawful.  On  the  contrary,  it  was  fearlessly  proclaimed 
in  the  days  of  Bracton  that  the  king  was  below  the 
law  and  bound  to  obey  it,  and  in  his  coronation  oath 
he  swears  to  observe  and  respect  it. 

But  whatever  might  have  been  the  personal  im- 


ELEVENTH    AMENDMENT  103 

munity  of  the  king,  it  had  been  settled  at  common 
law  long  prior  to  the  adoption  of  the  Constitution  of 
the  United  States  that  immunity  from  suit  did  not  ex- 
tend to  any  officer  or  servant  of  the  crown.  The  very 
exemption  of  the  king  from  responsibility  before  the 
courts  in  cases  of  tort  conclusively  established  the  per- 
sonal responsibility  of  some  officer  or  servant  of  the 
crown,  and  the  direction  or  authority  of  the  king  did 
not  constitute  any  warrant  or  defense  for  a  wrongful 
and  illegal  act  done  by  any  officer  or  servant.  As  the 
Supreme  Court  said  in  the  case  of  Langford  vs.  United 
States:  "The  English  maxim  does  not  declare  that 
the  government,  or  those  who  administer  it,  can  do 
no  wrong;  for  it  is  a  part  of  the  principle  itself  that 
wrong  may  be  done  by  the  governing  power,  for  wliich 
the  ministry,  for  the  time  being,  is  held  responsible." ^ 
The  boast  of  Englishmen  for  centuries  had  been  that 
no  officer  of  the  government  was  above  the  ordinary 
law.  In  his  interesting  lectures  at  Oxford  as  a  suc- 
cessor of  Blackstone  in  the  Vinerian  professorship, 
Professor  Dicey  says:  "In  England  the  idea  of  legal 
equality,  or  of  the  universal  subjection  of  all  classes, 
to  one  law  administered  by  the  ordinary  courts,  has 
been  pushed  to  its  utmost  limit.  With  us  every 
official,  from  the  prime  minister  down  to  a  constable 
or  a  collector  of  taxes,  is  under  the  same  respon- 
sibility for  every  act  done  without  legal  justifica- 
tion as  any  other  citizen.  The  reports  abound  with 
cases  in  which  officials  have  been  brought  before  the 
courts,  and  made,  in  their  personal  capacity,  hable 

1  loi  United  States  Reports,  p.  343. 


104  ELEVENTH    AMENDMENT 

to  punishment,  or  to  the  payment  of  damages,  for 
acts  done  in  their  official  character  but  in  excess  of 
their  lawful  authority.  A  colonial  governor,  a 
secretary  of  state,  a  military  officer,  and  all  sub- 
ordinates, though  carrying  out  the  commands  of 
their  official  superiors,  are  as  responsible  for  any  act 
which  the  law  does  not  authorize  as  is  any  private 
and  unofficial  person."^  And  Anson  in  his  "Law 
and  Custom  of  the  Constitution"  points  out  that 
the  English  Constitution  "has  never  recognized  any 
distinction  between  those  citizens  who  are  and 
those  who  are  not  officers  of  the  state  in  respect  of 
the  law  which  governs  their  conduct  or  the  jurisdic- 
tion which  deals  with  them."  In  the  famous  case  of 
Entick  vs.  Carrington  (1765),  a  secretary  of  state 
sought  immunity  as  an  officer  of  the  crown  from  a 
suit  for  damages  by  pleading  reasons  of  state  for 
an  unlawful  act,  but  Lord  Chief  Justice  Camden 
declared  that  "with  respect  to  the  argument  of 
state  necessity  or  a  distinction  that  has  been  aimed 
at  between  state  offences  and  others,  the  common 
law  does  not  understand  that  kind  of  reasoning,  nor 
do  our  books  take  notice  of  any  such  distinctions.  "^ 
And  one  hundred  years  later,  in  the  case  of  Feather 
vs.  The  Queen,  Lord  Chief  Justice  Cockburn  declared 
that  "no  authority  is  needed  to  estabhsh  that  a  ser- 
vant of  the  crown  is  responsible  in  law  for  a  tortious 
act  done  to  a  fellow  subject,  though  done  by  the 
authority  of  the  crown,  a  position  which  appears  to 

^  The  Law  of  the  Constitution,  8th  ed.,  p.  189. 

*  Reported  by  Hargrave,  19  Howell's  State  Trials,  pp.  io3o,  1073. 


ELEVENTH    AMENDMENT  105 

US  to  rest  on  principles  which  are  too  well  settled  to 
admit  of  question,  and  which  are  ahke  essential  to 
uphold  the  dignity  of  the  crown  on  the  one  hand,  and 
the  rights  and  hberties  of  the  subject  on  the  other. "^ 
Moreover,  the  rule  of  respondeat  superior  does 
not  apply  to  the  king.  The  conclusive  legal  pre- 
sumption is  that  the  king  can  do  no  legal  wrong, 
and  this  leads  to  the  further  conclusive  presumption 
that,  in  the  eye  of  the  law,  he  cannot  authorize  or 
direct  a  wrong.  Every  executive  officer  of  the 
crown  is,  therefore,  treated  as  if  he  were  a  principal, 
and  as  such  is  held  personally  responsible  whenever 
any  legal  right  of  the  subject  has  been  invaded  by 
him,  although  he  may  have  acted  under  the  direct 
order  of  the  king,  by  his  command  and  even  in  his 
presence.  The  civil  irresponsibili  ty  of  the  king  for  tor- 
tious acts  could  not  have  been  maintained  with  any 
show  of  justice  if  the  officers  and  agents  of  the  crown 
had  not  been  held  personally  responsible  for  any  illegal 
acts  committed  by  them,  and  if  the  king  had  not 
been  compelled  to  act  through  responsible  agents. 
From  the  earliest  times  it  has  been  deemed  essential 
that  the  king  should  always  act  through  an  officer 
or  servant,  in  order  that  there  might  be  some  one 
upon  whom  responsibility  could  be  fastened.  Lord 
Coke  declares  in  his  "Institutes"  that  "the  king, 
being  a  body  politique,  cannot  command  but  by 
matter  of  record."  Custom  and  statute  early  re- 
quired that  all  executive  acts  to  which  the  sovereign 
was  of  necessity  a  party  should  be  done  in  certain 

>  6  Best  and  Smith's  Queen's  Bench  Reports  (i865),  p.  297. 


106  ELEVENTH    AMENDMENT 

forms  and  authenticated  by  the  signature  or  seal  of 
some  officer.  The  intervention  of  an  officer  was  always 
necessary.  In  fact,  some  minister  or  officer  of  the 
crown  can  be  held  fully  responsible  for  any  illegal 
act.  Anson  states  that  "there  is  hardly  anything 
which  the  sovereign  can  do  without  the  intervention 
of  written  forms,  and  nothing  for  which  a  minister 
is  not  responsible." 

Although  the  cases  in  England  against  officers  of 
the  crown  were  generally  at  law,  there  can  be  no 
reasonable  doubt  that  the  Court  of  Chancery,  at 
the  time  when  our  Constitution  was  adopted,  had 
full  power,  by  means  of  the  writ  of  injunction,  to 
restrain  an  officer  of  the  crown  from  violating  the 
law  where  the  remedy  at  law  in  a  suit  for  damages 
or  for  possession  of  property,  real  or  personal,  would 
have  been  wholly  inadequate  and  ineffective.  The 
great  state  trial,  known  as  the  case  of  the  B anker s,^ 
in  which  Lord  Somers  was  overruled  by  the  House 
of  Lords,  left  no  doubt  as  to  the  principle  and  the 
jurisdiction  of  the  courts  in  suits  against  crown 
officers.  As  Professor  Goodnow  has  shown  in  his 
work  on  "Comparative  Administrative  Law,"  the 
English  courts  had  long  been  accustomed  in  one 
way  or  another  to  control  servants  of  the  crown 
and  executive  officers  of  the  government  and  to 
compel  them  to  obey  the  law.  All  the  great  writs, 
which  were  at  first  prerogative  writs,  had  been 
originally  issued  to  control  administrative  or  judicial 
officers.     Such  was   the  original  function  of  man- 

'  Reported  in  i4  Howell's  State  Trials,  pp.  i-ii4. 


ELEVENTH    AMENDMENT  107 

damus,  habeas  corpus,  quo  warranto,  prohibition. 
Injunctions,  it  is  true,  seem  rarely  to  have  been 
made  use  of  in  England  as  a  means  of  preventing 
administrative  action,  and  only  a  few  cases  can  be 
found  where  they  were  so  used,  but,  on  settled 
principles,  any  administrative  or  executive  officer 
threatening  to  do  an  illegal  act  which  would  injure 
the  individual  in  his  property  rights  was  amenable 
to  the  jurisdiction  of  courts  of  equity  in  controversies 
requiring  their  intervention. 

It  is  also  true  that  no  cases  are  to  be  found  in 
England  where  officers  have  been  held  responsible 
in  damages  for  enforcing  an  act  of  parliament  or 
have  been  restrained  from  carrying  its  provisions 
into  effect,  but  tliis,  of  course,  is  the  result  of  the 
legislative  sovereignty  of  parhament  and  of  the  fact 
that  there  are  no  constitutional  limitations  imposed 
upon  it.  Nevertheless,  the  same  principles  which 
make  government  officers  in  England  subject  to 
the  ordinary  law  and  the  ordinary  courts  for  any 
illegal  act  done  or  threatened  would  clearly  authorize 
the  issuance  of  injunctions  restraining  the  enforce- 
ment of  an  unconstitutional  statute  if  there  were  any 
constitutional  limitations  upon  the  legislative  power 
of  the  English  parliament.  Thus,  for  example,  a 
colonial  statute,  or  a  municipal  or  administrative 
rule,  by-law,  or  ordinance  in  conflict  with  an  act  of 
parliament  would  be  illegal  and  void,  and,  within 
settled  principles,  its  enforcement  could  be  re- 
strained if  other  grounds  of  equity  jurisdiction 
existed. 


108  ELEVENTH    AMENDMENT 

In  the  light  of  the  long-settled  and  well-known 
rules  of  the  common  law,  establishing  the  distinction 
between  suits  against  the  king  under  the  petition 
of  right  and  suits  against  officers  of  the  crown  for 
violating  the  legal  rights  of  individuals,  it  is  most 
significant  and  persuasive,  if  not  convincing,  that 
the  framers  of  the  eleventh  amendment  confined 
its  language  to  suits  directly  against  a  state,  and 
did  not  attempt  to  prohibit  suits  against  officers  of 
a  state  when  acting  as  its  representatives.  They 
could  hardly  have  intended  that  such  a  principle 
as  that  "the  king  can  do  no  wrong"  should  have  any 
place  in  our  system  of  government  to  the  prejudice 
of  the  constitutional  rights  of  individuals.  We 
have  no  king  to  whom  it  can  be  applied.  They 
surely  did  not  intend  to  afford  less  protection  and 
less  redress  against  the  invasion  of  the  rights  of 
citizens  by  those  in  power  than  was  afforded  in 
monarchical  England  to  the  subjects  of  the  king. 
They  could  not  have  been  ignorant  of  the  famous 
cases  which  had  established  the  legal  responsibility 
of  all  officers  of  the  English  government  and  their 
subordination  to  the  jurisdiction  of  the  ordinary 
courts  of  justice.  They  must  have  contemplated 
that  state  statutes  might  be  passed  in  conflict  with 
the  Constitution  of  the  United  States,  and  that 
these  statutes  would  necessarily  have  to  be  enforced 
or  attempts  made  to  enforce  them  by  state  officers. 
And  they  must  have  appreciated  that  if  state 
officers,  as  agents  of  their  respective  states,  were 
granted  immunity  from  suit  in  a  court  of  the  United 


ELEVENTH    AMENDMENT  109 

States  because  they  were  acting  for  and  on  behalf  of 
their  states,  the  Constitution  could  in  many  respects 
be  rendered  wholly  ineffective  and  nugatory. 

The  failure  to  prohibit  suits  against  officers  of  a 
state  must,  therefore,  have  been  intentional.  In- 
deed, it  is  highly  improbable  that  any  one  at  the 
time  conceived  that  the  language  adopted  was  broad 
enough  to  prohibit  suits  against  officers  of  a  state. 
On  the  contrary,  it  is  proper  to  -assume  that  the 
framers  of  the  eleventh  amendment  did  not  intend 
to  permit  an  officer  of  a  state,  while  acting  under 
the  color  or  excuse  of  an  unconstitutional  state 
statute,  to  invade  or  deny  any  right  guaranteed  by 
the  Constitution  of  the  United  States,  or  that  such  a 
state  officer  should  be  immune  from  suit  in  a  court 
of  the  United  States  merely  because  he  was  acting  in 
a  representative  capacity  as  an  agent  of  the  state. 
The  courts  of  the  United  States  were  specially  charged 
with  the  preservation  of  the  Constitution,  so  far, 
indeed,  as  it  can  be  preserved  by  judicial  authority. 
The  "Federalist"  shows  how  clearly  it  was  contem- 
plated that  the  federal  courts  were  to  have  power  to 
overrule  state  statutes  in  manifest  contravention  of  the 
Constitution.  If  state  officers  were  withdrawn  from 
the  jurisdiction  of  the  national  courts,  their  oath  to 
support  the  Constitution  of  the  United  States  might 
become  a  mere  empty  ceremony  of  no  enforceable 
obligation  or  sanction.  If  officers  of  a  state  could 
not  be  sued  in  equity  in  a  federal  court  in  an  action 
to  enjoin  the  enforcement  of  unconstitutional  state 
statutes,  many  of  the  provisions  of  the  Constitution, 


110  ELEVENTH    AMENDMENT 

of  equal  authority  with  the  eleventh  amendment, 
might  not  be  effectually  enforceable  except  by  the 
grace  of  the  states.  The  prohibitions  against  the 
states,  which  existed  when  the  eleventh  amendment 
was  adopted,  such  as  that  no  state  shall  emit  bills 
of  credit,  or  make  anything  but  gold  and  silver  coin 
a  tender  in  payment  of  debts,  or  pass  any  bill  of 
attainder,  or  any  ex  post  facto  law,  or  any  law  impair- 
ing the  obligation  of  contracts,  or  lay  imposts  or 
duties  on  imports  or  exports,  might  to  a  great 
extent  be  nullified  and  rendered  practically  ineffec- 
tive, if  officers  of  a  state  could  not  be  sued  in  a 
federal  court.  Indeed,  the  thirteenth,  fourteenth 
and  fifteenth  amendments  would  be  deprived  of  a 
great  part  of  their  intended  effect  if  state  officers 
enforcing  unconstitutional  state  laws  and  clothed 
w  ith  the  power  of  the  state  could  not  be  sued  and 
enjoined  in  a  federal  court. 

As  each  of  these  subsequent  amendments,  how- 
ever, provides  that  "  Congress  shall  have  power  to 
enforce  this  article  by  appropriate  legislation,"  it  has 
been  suggested  that  this  provision  may  be  construed 
as  limiting  the  prohibition  of  the  eleventh  amend- 
ment and  as  empowering  Congress  to  confer  on  the 
courts  of  the  United  States  jurisdiction  of  suits  against 
states  or  state  officers  as  an  appropriate  means  of  en- 
forcing the  later  amendments.  Mr.  Justice  Shiras 
referred  to  this  view  in  the  case  of  Prout  vs.  Starr 
and  said:  "Much  less  can  the  eleventh  amendment 
be  successfully  pleaded  as  an  invincible  barrier  to 
judicial  inquiry  whether  the  salutary  provisions  of 


ELEVENTH    AMENDMENT  111 

the  fourteenth  amendment  have  been  disregarded 
by  state  enactments."^ 

The  courts  of  the  United  States  and  of  the  several 
states  have  generally  adopted  and  appHed  the 
English  common  law  as  to  the  amenability  of  execu- 
tive and  administrative  officers  to  the  jurisdiction 
of  the  ordinary  courts  and  their  personal  responsi- 
bility for  any  illegal  acts  done  by  them  or  under 
their  direction.  There  is  no  longer  any  question 
but  that  the  eleventh  amendment  does  not  shield 
state  officers  from  suits  at  law  in  a  court  of  the 
United  States  to  recover  damages  for  any  invasion  of 
private  rights  under  the  color  of  an  unconstitutional 
statute,  or  to  recover  possession  of  real  property  in 
the  custody  of  such  officers.  The  rule  is  axiomatic 
that  no  officer  in  this  country  is  so  high  that  he 
is  above  the  Constitution  of  the  United  States, 
and  that  no  officer  of  the  law,  state  or  national, 
may  violate  it  under  the  color  or  excuse  of  a  statute, 
national  or  state,  in  conffict  with  its  provisions. 
The  fact  that  an  officer  has  acted  on  behalf  of  a 
state  under  the  du"ection  or  authority  of  an  uncon- 
stitutional statute,  or  under  the  orders  of  a  superior, 
constitutes  no  defense  to  an  action  at  law  for  restitu- 
tion or  for  damages  for  any  invasion  of  individual 
rights  any  more  than  the  command  of  the  king  or  the 
prime  minister  would  constitute  a  defense  in  Eng- 
land. The  alleged  law  is  treated  as  a  nullity  and  as 
absolutely  void  for  all  purposes,  except  perhaps  as 
negativing  the  existence  of  malice  or  bad  faith  or 

'  i88  United  States  Reports,  p.  543. 


112  ELEVENTH    AMENDMENT 

criminal  intent.  But  it  confers  no  warrant  or 
authority  and  affords  no  defense  or  protection. 

The  fundamental  reasoning  upon  which  these 
conclusions  are  based  is  that  the  state,  the  abstract 
political  entity,  can  speak  and  act  only  by  valid 
laws,  that  an  unconstitutional  statute  cannot  be  its 
legal  act,  that  it  cannot,  legally  speaking,  authorize 
any  act  in  conflict  with  the  Constitution,  that  no 
officer  of  a  state,  not  even  the  governor,  can  have 
any  legal  duty  or  legal  executive  function  to  dis- 
regard or  violate  the  Constitution,  and  that  what- 
ever wrong  is  attempted  in  its  name  is  to  be 
conclusively  imputed  to  its  officer,  who  cannot 
plead  his  representative  capacity.  The  distinction 
between  the  government  of  a  state  and  the  state 
itself  is  elucidated  by  Mr.  Justice  Matthews  in  the 
leading  case  of  Poindexter  vs.  Greenhow.^ 

Most  difficult,  however,  are  questions  which  arise 
in  connection  with  suits  in  equity  to  restrain  state 
officers  from  enforcmg  state  statutes  alleged  to  be 
unconstitutional.  The  plainest  principles  of  justice 
would  seem  in  many  cases  to  require  a  preventive 
remedy,  for  it  might  be  of  vital  importance  that 
an  officer  be  restrained  from  doing  an  unlawful  act 
to  the  irreparable  injury  of  the  individual.  Mani- 
festly, it  would  be  unfair  and  unjust  to  tell  the  latter 
that  he  must  wait  until  his  rights  have  been  vio- 
lated or  his  property  confiscated  or  destroyed.  This 
point  was  first  presented  to  the  Supreme  Court  in 
1824   in  the   leading   case   of  Osborn  vs.  Bank  of 

^  ii4  United  States  Reports,  p.  270. 


ELEVENTH    AMENDMENT.  113 

the  United  States.^  It  was  then  declared,  in 
one  of  Chief  Justice  Marshall's  famous  opinions, 
that,  notwithstanding  the  eleventh  amendment,  a 
circuit  court  of  the  United  States  had  jurisdiction 
in  equity  to  restrain  a  state  officer  from  executing 
or  enforcing  an  unconstitutional  state  statute  when 
to  execute  it  would  violate  rights  and  privileges  of 
a  complainant  guaranteed  by  the  Constitution  of  the 
United  States,  and  would  work  irreparable  damage 
and  injury  to  him,  for  which  no  plain,  adequate  and 
complete  remedy  could  be  had  at  law. 

The  general  doctrine  of  the  Osborn  case  has  never 
been  departed  from,  and  it  has  sustained  innumerable 
suits  which  have  protected  property  rights  from  the 
enforcement  of  state  statutes  in  conflict  with  the 
Constitution  of  the  United  States.  It  is  no  ex- 
aggeration to  say  that  this  doctrine,  more  than  any 
other,  has  rendered  the  Constitution  an  effective 
shield  against  oppressive,  tyrannical  and  confisca- 
tory leg^lation,  and  compelled  the  states  to  obey 
the  supreme  law  of  the  Constitution.  The  reasoning 
of  Chief  Justice  Marshall  is  very  logical  and  lucid, 
and  it  is  most  convincing.  If,  as  was  then  conceded 
to  be  indisputable,  the  privilege  or  immunity  of  the 
state  as  principal  was  not  communicated  to  the 
officer  as  agent,  and  if  an  action  at  law  would  he 
against  the  officer  in  which  full  compensation  ought 
to  be  made  for  a  legal  injury  resulting  from  any 
unlawful  act  done  in  pursuance  of  an  unconstitu- 
tional and  void  statute,  there  existed  no  reason  why 

1  9  Whealon's  Reports,  p.  788. 


114  ELEVENTH    AMENDMENT 

the  preventive  power  of  a  court  of  equity  should 
not  equally  apply  to  such  an  officer  or  why  it  should 
not  restrain  him  from  the  commission  of  a  wrong 
which  it  would  punish  him  for  committing.  "If," 
continues  the  Chief  Justice,  "the  party  before  the 
court  would  be  responsible  for  the  whole  injury, 
why  may  he  not  be  restrained  from  its  commission, 
if  no  other  party  can  be  brought  before  the  court?" 
It  was  pointed  out  that  the  very  fact  that  the  state 
could  not  be  sued  was  a  reason  for  permitting  the 
suit  to  proceed  in  its  absence  against  the  officer  or 
agent.  We  have  here  another  example  of  how,  in 
the  evolution  of  legal  principles,  the  same  causes  pro- 
duce the  same  results.  As  in  England  the  fact  that 
the  king  could  not  be  sued  in  the  ordinary  courts 
for  a  wrong  led  to  the  rule  that  his  immunity  or  ir- 
responsibility was  not  to  be  extended  to  his  servants 
or  agents  and  that  the  latter  were  to  be  held  personally 
liable  for  whatever  they  did  under  the  king's  orders 
in  violation  of  the  legal  rights  of  an  individual,  so 
with  us  the  fact  that  a  state  could  not  be  sued  in 
a  federal  court  led  to  the  rule  that  its  immunity  or 
irresponsibility  was  not  to  be  extended  to  its  officers 
and  that  they  were  suable  as  responsible  principals, 
even  when  acting  under  a  state  statute  and  as  the 
agents  or  representatives  of  the  state. 

Chief  Justice  Marshall  also  said  in  the  Osborn 
case  that  it  might  "be  laid  down  as  a  rule  which 
admits  of  no  exception,  that,  in  all  cases  where 
jurisdiction  depends  on  the  party,  it  is  the  party 
named   in  the  record.      Consequently  the  eleventh 


ELEVENTH    AMENDMENT  115 

amendment,  which  restrains  the  jurisdiction  granted 
by  the  Constitution  over  suits  against  states,  is, 
of  necessity,  hmited  to  those  suits  in  which  a  state 
is  a  party  on  the  record.  The  amendment  has  its 
full  effect,  if  the  Constitution  be  construed  as  it 
would  have  been  construed  had  the  jurisdiction  of 
the  court  never  been  extended  to  suits  brought 
against  a  state,  by  the  citizens  of  another  state,  or 
by  aliens.  The  state  not  being  a  party  on  the 
record,  and  the  court  having  jurisdiction  over  those 
who  are  parties  on  the  record,  the  true  question 
is  not  one  of  jurisdiction,  but  whether,  in  the 
exercise  of  its  jurisdiction,  the  court  ought  to 
make  a  decree  against  the  defendants;  whether 
they  are  to  be  considered  as  having  a  real  interest, 
or  as  being  only  nominal  parties."  This  reasoning 
was  reaffirmed  by  the  Supreme  Court  as  late  as 
1872  in  the  case  of  Davis  vs.  Gray,  ^  which  was  a 
suit  against  the  governor  of  the  state  of  Texas. 
But  in  later  cases  it  has  been  repudiated,  and  the 
court  has  declared  that  "it  must  be  regarded  as  a 
settled  doctrine  of  this  court,  established  by  its 
recent  decisions, '  that  the  question  whether  a  suit  is 
within  the  prohibition  of  the  eleventh  amendment 
is  not  always  to  be  determined  by  reference  to  the 
nominal  parties  on  the  record.' "  ^ 

It  may,  nevertheless,  be  now  interesting  and  valu- 
able to  re-examine  the  doctrine  enunciated  by  Chief 
Justice  Marshall  and  to  inquire  whether,  after  all, 

*  16  Wallace's  Reports,  p.  220. 

"^  In  re  Ayers,  i23  United  States  Reports,  p.  487. 


116  ELEVENTH    AMENDMENT 

it  does  not  embody  the  true  and  sound  rule  which 
should  govern  this  question,  particularly  in  view  of 
the  fact  that  the   decisions  which   have   departed 
from   his   reasoning    have    failed    to   indicate   any 
definite  criterion  to  guide  us  in  determining  when 
a  suit  against  a  state  officer  is  and  when  it  is  not 
to  be  deemed  a   suit  against  the  state  within  the 
true  meaning   of   the  eleventh  amendment.     The 
question  must  be  considered  as  if  the  jurisdiction 
of  the  federal  courts  had  never  been  extended  to 
suits  by  an  individual  against  a  state.     The  con- 
trolling inquiry    in    a    suit  against   a  state  officer 
ought  logically  to  be  whether  the  relief  or  remedy 
sought  can  properly  be  granted  in  the  absence  of 
the  state  as  a  party  defendant;    in  other  words, 
whether  the  state  is  or  is  not  a  necessary  and  in- 
dispensable party;    and  this  inquiry  should  be  de- 
termined by  the  result  or  burden  of  the  judgment 
which  may  be  entered.    If,  for  example,  the  suit  is  to 
enjoin  the  enforcement  of  an  unconstitutional  statute 
regulating  rates  or  imposing  taxes,  it  must  be  pre- 
sumed that  the  state  has  not  authorized  the  wrong, 
that  it  can  have  no  legal  concern  or  interest  in  a  void 
enactment  of  its  legislature,  and  that  it  cannot  be 
heard  to  assert  any  right  to  have  its  officers  violate 
the  Constitution  of  the  United  States  for  its  benefit. 
If,  on  the  other  hand,  the  relief  or  remedy  sought 
will  affect  the  property  rights  or  funds  of  the  state, 
or  compel  it  to  pay  its  debts,  or  require  the  specific 
performance  of  a  contract  by  the  state,  or  the  doing 
or  omitting  to  do  any  act  by  the  state  itself,  the  court 


ELEVENTH    AMENDMENT  117 

must  needs  hold  that  it  is  a  necessary  and  indispensa- 
ble party,  and  that,  as  it  cannot  be  sued  in  a  federal 
court  for  want  of  jurisdiction  over  it,  the  suit  must 
be  dismissed.  This  dismissal,  however,  would  not 
be  for  want  of  jurisdiction  or  judicial  power  over 
the  individual  state  officer  as  defendant,  nor  because 
the  suit  was  against  the  state  —  for  the  state  was 
not  a  party  and  its  presence  was  sought  to  be  dis- 
pensed with  —  but  because  the  state  was  an  in- 
dispensable party  defendant  and  the  suit  could  not 
proceed  in  its  absence.  The  result  of  recurring  to 
this  view  would  be  to  simplify  the  consideration  of 
many  cases  and  reconcile  much  conflicting  reason- 
ing. We  should  then  have  a  definite  and  logical 
criterion  to  guide  us  in  cases  against  state  officers. 
If  the  court  found  that  the  state  was  not  a  necessary 
and  indispensable  party,  the  issue  in  such  cases  would 
be  narrowed  to  the  inquiry  whether  the  relief  should 
be  granted  against  the  officer  within  established  prin- 
ciples of  equity  jurisprudence  and  procedure. 

There  remains  the  question  as  to  enjoining  crim- 
inal prosecutions.  Should  the  jurisdiction  of  a  court 
of  equity  be  ousted  simply  because  the  state  has 
authorized  its  officers  to  enforce  unconstitutional 
regulations  affecting  property  rights  by  a  criminal 
instead  of  a  civil  action.^  The  Supreme  Court  has 
held  that,  notwithstanding  the  general  principle  that 
a  court  of  equity  has  no  jurisdiction  of  a  bill  to  stay 
criminal  proceedings,  it  may  nevertheless  enjoin  a 
state  officer  from  instituting  such  proceedings  where 
property  rights  are  about  to  be  invaded  and  destroyed 


118  ELEVENTH   AMENDMENT 

through  the  instrumentahty  of  an  unconstitutional 
statute  providing  for  its  enforcement  by  criminal 
proceedings.  The  nature  of  an  essentially  civil 
question  or  controversy,  such  as  one  between  shippers 
or  passengers  on  the  one  side  and  a  railroad  company 
on  the  other  as  to  the  reasonableness  of  rates, 
cannot  be  changed  by  legislative  fiat.  The  exercise 
of  such  a  jurisdiction  to  restrain  criminal  proceedings 
has  been  found  necessary  in  many  recent  cases 
where  a  defense  on  a  criminal  trial  before  a  jury 
would  afford  no  fair  or  adequate  protection  to  those 
whose  property  rights  were  affected.  The  htigation, 
for  example,  under  a  bill  in  equity  to  restrain  the 
enforcement  of  an  unconstitutional  criminal  statute 
regulating  rates  presents  a  controversy  of  a  civil 
nature  with  the  officer  and  not  with  the  state,  and 
the  only  question  is,  whether  a  court  of  equity 
should  intervene,  or  should  leave  those  against  whom 
criminal  proceedings  are  threatened  to  their  defense 
by  demurrer  to  the  indictment  or  trial  on  the  merits. 
The  latter  will  always  be  done  when  a  defense  at 
law  will  afford  reasonably  fair  and  adequate  pro- 
tection. But  when  a  defense  at  law  will  not  afford 
due  protection  and  irreparable  injury  to  property 
is  threatened,  there  exists  no  reason  why  a  court  of 
equity  should  not  intervene  in  such  a  case  and  grant 
protection  and  relief. 

It  may  seem  to  many  doubtful  whether  the  two 
leading  cases  which  are  now  attracting  so  much  at- 
tention, namely.  In  re  Ayers^  and  Fitts  vs.  McGhee,^ 

1  123  United  States  Reports,  p.  443.    2 172  United  States  Reports,  p.  5i6. 


ELEVENTH    AMENDMENT  119 

necessarily  presented  any  question  under  the  eleventh 
amendment,  and  whether  they  should  not  have  been 
disposed  of  solely  upon  the  ground  that  a  court  of 
equity  ought  not  to  have  enjoined  the  tlu^eatened  suits 
or  prosecutions.  Probably  neither  of  the  suits  in 
equity  discussed  in  these  two  cases  would  have  been 
maintainable  under  the  general  principles  of  equity 
jurisprudence  even  if  the  state  had  been  suable 
in  a  court  of  the  United  States,  for  no  irreparable 
injury  was  threatened  and  the  opportunity  of  defense 
at  law  seemed  to  afford  reasonable  protection. 

The  question  of  the  right  to  sue  a  state  officer  to 
restrain  the  enforcement  of  an  unconstitutional 
statute  regulating  the  rates  and  charges  of  railroad 
companies  is  now  pending  in  some  of  its  aspects 
before  the  Supreme  Court  in  important  cases  in- 
volving statutes  of  Minnesota  and  North  Carolina. 
These  cases  have  been  fully  and  ably  argued  and 
are  under  advisement,  and  they  may  lead  to  a 
reconsideration  of  some  of  the  reasoning  in  the 
prior  cases.  A  comprehensive  decision  may,  there- 
fore, shortly  be  delivered  which  will  remove  some 
of  the  reasons  for  the  existing  misunderstanding 
and  conflict  between  the  states  and  the  federal 
courts.^ 

The  time  at  our  disposal  renders  it  impossible  to 
consider  the  many  noteworthy  and  interesting  cases 
which  have  arisen  under  the  eleventh  amendment  and 


^  Ex  parte  Young  (Attorney  General  of  Minnesota),  reported  in  209 
United  States  Reports,  p.  128,  and  the  case  of  Hunter  (Sheriff  of  Buncombe 
County,  N.  C.)  vs.  Wood,  209  United  States  Reports,  p.  2o5. 


120  ELEVENTH    AMENDMENT 

which  frequently  carry  us  into  the  realm  of  public 
law  and  statesmanship.  The  leading  decisions  are, 
of  course,  in  the  Supreme  Court,  but  many  instruc- 
tive opinions  will  be  found  in  the  lower  federal 
courts.  The  constant  increase  of  governmental 
functions  and  of  interference  with  individual  liberty 
and  action  is  certain  to  be  a  fruitful  source  of  litiga- 
tion in  the  future  and  will  call  for  frequent  consid- 
eration of  the  scope  of  the  eleventh  amendment. 

In  discussing  the  subject  of  suits  to  restrain  the 
enforcement  of  state  statutes  alleged  to  be  uncon- 
stitutional, we  should  not  overlook  or  pass  unnoticed 
the  attempts  made  in  recent  enactments  regulating 
rates  and  charges  to  coerce  or  intimidate  railroad  and 
other  public  service  corporations  into  immediate  obe- 
dience and  abandonment  of  their  constitutional  right 
to  appeal  to  the  courts,  by  imposing  upon  them 
enormous  and  unreasonable  fines  and  penalties,  or 
by  threatening  them  with  the  forfeiture  of  the  pro- 
tection of  the  government.  Heavy  fines  or  penal- 
ties are  attached  to  violations  of  the  law;  and,  as 
the  transactions  of  these  corporations  are  generally 
very  numerous,  disobedience  of  a  statute,  if  only  in 
good  faith  for  the  purpose  of  testing  its  validity, 
would  in  a  few  days  involve  the  risk  of  bankruptcy. 
The  avowed  or  ill-concealed  purpose  of  these  fines 
and  penalties  and  of  the  resort  to  the  criminal 
law  is  to  prevent  any  interference  by  courts  of 
equity.  The  idea,  advanced  in  many  quarters  and 
under  many  disguises,  seems  to  be  that  corporations 
shall  be  outlawed  unless  they  consent  to  abandon 


ELEVENTH    AMENDMENT  121 

their  right  to  appeal  to  the  courts  for  protection 
against  unconstitutional  statutes  and  void  and  op- 
pressive enactments.  This  unfair  spirit  is  wide- 
spread. For  example,  while  the  Federal  Employers' 
Liability  Act,  recently  declared  unconstitutional  by 
the  Supreme  Court  of  the  United  States,  was  under 
advisement  by  that  court.  President  Roosevelt  in  his 
Jamestown  speech  criticized  the  railroad  companies 
for  having  contested  the  validity  of  the  statute  and 
suggested  that  "the  law  should  be  such  that  it  will  be 
impossible  for  the  railroads  successfully  to  fight  it 
without  thereby  forfeiting  all  right  to  the  protection 
of  the  federal  government  under  any  circumstances." 
The  courts  have  repeatedly  pointed  out  that  the 
owners  of  property  devoted  to  a  public  use  are 
entitled  to  a  fair  and  adequate  judicial  investigation 
if  they  contend  that  the  rates  or  charges  prescribed 
by  a  legislature  are  unreasonable  and  confiscatory. 
This  is  but  recognizing  that  the  owners  of  railroads 
and  other  property  are  entitled  to  a  day  in  court, 
just  as  the  humblest  person  is  entitled  to  his  day 
in  court  when  his  constitutional  and  vested  property 
rights  are  invaded  by  the  government.  If  the 
private  property  of  the  individual  is  to  be  taken  for 
a  public  use,  it  would,  of  course,  be  obviously  unfair 
and  unjust  to  permit  the  legislature  to  say  con- 
clusively what  should  be  paid  to  him,  and  deny 
him  any  adequate  opportunity  in  the  courts  to 
review  the  legislative  fiat.  The  same  principle 
applies  to  public  service  corporations.  They  are 
entitled  to  appeal  to  the  courts  to  j^ass  upon  the 


122  ELEVENTH   AMENDMENT 

validity  of  any  legislation  which  attempts  to  compel 
them  to  render  services  at  a  rate  fixed  by  the  legisla- 
ture if  they  contend  that  such  rate  is  unreasonably 
low  and  confiscatory;  and,  pending  the  judicial 
investigation,  they  ought  not  to  incur  the  risk  of 
accumulating  and  ruinous  penalties.  The  New  York 
Public  Service  Commissions  Act  of  last  year  recog- 
nizes this  in  principle.  But,  instead  of  granting  a  fair 
hearing  or  providing  for  any  judicial  proceeding  in 
which  the  reasonableness  of  the  statutory  rates  may 
be  promptly  investigated,  the  constant  effort  seems 
to  be  to  render  resort  to  the  courts  so  dangerous 
that  property  owners  will  abandon  their  right  to  a 
day  in  court  rather  than  take  the  risks  involved  in 
allowing  penalties  to  accrue  and  accumulate,  which 
might  subject  their  property  to  confiscation.  Thus, 
in  the  recent  New  York  gas  statute,  declared  un- 
constitutional by  the  United  States  circuit  court,  no 
judicial  investigation  was  afforded  and  the  penal- 
ties imposed  were  at  the  rate  of  $i,ooo  for  each 
overcharge  or  violation  of  the  law.  As  the  Consol- 
idated Gas  Company  alone  had  upwards  of  890,000 
customers,  an  overcharge  on  only  one  month's  bills, 
pending  an  attempt  to  test  the  law  in  good  faith, 
would  involve  the  fabulous  total  of  $890,000,000 
in  penalties,  or  nearly  five  times  the  value  of  the 
whole  property  of  the  company.  In  fact,  if  the 
New  York  statute,  at  least  in  this  respect,  is  not 
nullified  by  the  Supreme  Court  on  the  pending 
appeal,!   the  Consolidated  Gas  Company   may    be 

^  Willcox  vs.  Consolidated  Gas  Co.,  212  United  States  Reports,  p.  19. 


ELEVENTH   AMENDMENT  123 

absolutely  ruined  for  having  asserted  its  legal  right 
to  a  fair  judicial  investigation  before  being  com- 
pelled to  accept  what  it  insisted  and  what  the  court 
has  so  far  held  was  a  confiscatory  and  unreasonable 
rate;  that  is  to  say,  for  daring  to  insist  upon  a  fair  ju- 
dicial hearing  before  being  condemned.  The  Kansas 
statute  regulating  stockyards,  which  was  declared 
unconstitutional  by  the  Supreme  Court,^  imposed 
penalties  which  might  have  aggregated  $i5,ooo,ooo 
in  one  day,  or  nearly  twice  the  value  of  all  the 
property  of  the  stockyards  company.  The  recent 
railroad  statute  in  North  Carolina  imposes  fines 
which  would  amount  to  $2,5oo,ooo  per  day,  and  in 
a  few  days  would  bankrupt  the  railroad  companies. 
The  Minnesota  railroad  statute  imposes  penalties 
which  in  one  month  might  aggregate  several  hundred 
million  dollars. 

Speaking  of  these  penalties,  United  States  Circuit 
Judge  Lochren  justly  said:  "There  is  no  question 
but  that  such  legislation  is  vicious,  almost  a  disgrace 
to  the  civilization  of  the  age,  and  a  reproach  upon 
the  intelligence  and  sense  of  justice  of  any  legisla- 
ture which  could  enact  provisions  of  that  kind." 

If  any  such  policy  of  coercion  and  intimidation 
can  possibly  be  enforced  by  the  state  or  national 
governments,  in  any  form  or  under  any  subterfuge 
whatever,  we  shall  no  longer  be  living  under  a 
constitutional  government  with  effective  guaranties 
of  individual  rights  and  liberties.     If  Congress  or  a 

■  Colling  vs.  Kansas  City  Slock  Yards  Co.,  i83  United  States  Re- 
ports, p.  79. 


124  ELEVENTH   AMENDMENT 

state  legislature  can  compel  any  class  of  persons  to 
submit  to  an  unconstitutional  statute  by  imposing 
ruinous  fines  and  penalties,  or  other  provisions 
intended  to  operate  in  terrorem,  or  by  threatening  to 
deprive  that  class  of  the  protection  of  the  government, 
then  the  constitutional  limitations  imposed  by  the 
people  can  be  readily  circumvented  and  nullified, 
and  our  supposed  rights  and  liberties  will  exist  only 
in  the  grace  or  self-restraint  of  legislatures.  One 
class  is  selected  to-day,  but  another  class  will  be 
selected  to-morrow,  depending  only  on  the  interest  or 
prejudice  or  temptation  or  caprice  of  the  temporary 
majority.  Such  an  exercise  of  arbitrary  and  irre- 
sponsible power  is  in  utter  conflict  with  the  whole 
theory  of  our  institutions  and  in  utter  disregard  and 
defiance  of  those  fundamental  and  immutable  princi- 
ples of  justice  under  which  alone  free  governments 
can  exist.  As  Chief  Justice  Marshall  said  in  the 
great  case  of  Marbury  vs.  Madison  —  and  the  court 
was  then  facing  a  hostile  executive,  a  hostile  Congress 
and  a  hostile  public  opinion  —  "The  very  essence 
of  civil  liberty  certainly  consists  in  the  right  of  every 
individual  to  claim  the  protection  of  the  laws  when- 
ever he  receives  an  injury.  One  of  the  first  duties 
of  government  is  to  afford  that  protection.  .  .  . 
The  government  of  the  United  States  has  been 
emphatically  termed  a  government  of  laws  and  not 
of  men.  It  will  certainly  cease  to  deserve  this  high 
appellation  if  the  laws  furnish  no  remedy  for  the 
violation  of  a  vested  legal  right."  ^ 

^  I  Cranch's  Reports,  p.  i63. 


ELEVENTH   AMENDMENT  125 

Some  of  the  bills  now  pending  before  Congress 
propose  to  deprive  the  federal  courts  of  the  power 
to  issue  preliminary  injunctions  in  these  cases. 
This  would  be  a  policy  fraught  with  immeasurable 
danger  to  property  interests  as  well  as  to  personal 
liberty.  It  would  frequently  amount  to  a  com- 
plete denial  of  justice.  The  delay  of  litigation  might 
readily  be  attended  by  ruin.  But,  undoubtedly,  some 
reform  is  called  for.  There  can  be  no  question  that 
preliminary  injunctions  against  the  enforcement  of 
state  statutes  regulating  public  service  corpora- 
tions should  never  be  granted  without  prior  notice 
to  the  representatives  of  the  people,  and  full  oppor- 
tunity for  them  to  be  heard,  and  then  only  upon 
the  clearest  showing  of  threatened  irreparable  in- 
jury pending  the  delay  of  a  full  hearing  on  the 
merits.  Such  cases  ought  not  only  to  be  given  the 
earliest  possible  hearing,  but  the  courts  should  insist 
that  both  sides  proceed  with  the  utmost  expedition 
in  the  taking  of  testimony.  A  hearing  in  open 
court  and  not  before  a  master  would  greatly  facilitate 
this  result.  The  people  are  entitled  to  a  speedy 
determination  of  the  questions  involved  in  order 
that  they  may  promptly  have  the  benefit  of  the 
statute  if  it  be  constitutional,  or  that  they  may  at 
once  amend  it  if  it  be  unconstitutional.  There  is 
no  reason  why  in  the  majority  of  cases  such  a  suit 
should  not  be  ready  for  final  hearing  and  actually 
be  heard  within  sixty  days,  or  why  it  should  not  be 
finally  disposed  of  in  the  appellate  courts  within 
less  than  a  year.     It  should  have  preference  on  all 


126  ELEVENTH   AMENDMENT 

calendars.  The  Expedition  Act  of  Congress,  applica- 
ble to  cases  arising  under  the  Anti-Trust  and  Inter- 
state Commerce  laws,  would  furnish  a  good  model 
for  cases  involving  the  validity  of  state  laws. 

The  conditions  which  now  confront  the  people  in 
many  states,  where  statutes  regulating  public  service 
corporations  are  often  tied  up  for  years  by  litigation, 
tend  to  create  discontent,  impatience  and  dissatis- 
faction with  the  courts  and  to  engender  a  desire  for 
revolutionary  change  from  an  intolerable  situation. 
Laws  regulating  public  utilities  are  often  essential 
for  protection  against  those  who  otherwise  would 
have  the  power  to  make  a  prey  of  the  necessities 
of  the  people,  and  it  is  disgraceful  that  the  enforce- 
ment of  such  laws  can  be  delayed  by  litigation 
for  years  after  their  enactment.  As  the  delays  in 
our  criminal  procedure  are  crying  for  remedy,  so 
the  delays  in  this  class  of  litigation  are  crying 
for  immediate  and  effective  relief.  It  is  of  para- 
mount importance  that  the  people  should  be  con- 
vinced that  they  can  obtain  in  the  courts,  and 
especially  in  the  federal  courts,  a  prompt  determi- 
nation of  all  litigation  affecting  the  validity  of 
legislation  regulating  public  service  corporations 
which  they  or  their  representatives  have  deemed 
necessary  for  their  protection  against  extortion  or 
oppression.  In  most  cases,  however,  it  will  be  found 
that  the  representatives  of  the  state  are  as  much 
to  blame  for  the  delays  as  are  their  adversaries. 

But,  above  all  other  considerations,  stands  the 
necessity  for  maintaining  the   absolute   confidence 


ELEVENTH   AMENDMENT  127 

of  the  people  at  large  in  the  wisdom  and  impartiality 
of  the  federal  judges,  who  are  so  often  called  upon 
to  determine  the  validity  of  state  statutes  alleged 
to  conflict  with  the  Constitution  of  the  United  States 
and  in  so  doing  to  administer  justice  as  between 
the  state  and  the  individual  —  as  between  the 
majority  and  the  minority.  It  should  be  a  matter 
of  profound  concern  to  us  as  lawyers  to  make 
all  laymen  appreciate  that  the  exercise  of  this 
jurisdiction  by  the  federal  courts  is  necessary  for 
the  preservation  and  perpetuation  of  the  Con- 
stitution, and  that  it  is  right  and  just  that  every 
citizen  should  have  the  privilege  of  appealing  to 
the  national  courts  for  the  protection  of  rights  and 
liberties  guaranteed  to  him  by  the  national  Con- 
stitution. Equally  important  is  it  that  the  people 
should  appreciate  that  in  entertaining  suits  to 
restrain  the  enforcement  of  state  laws  alleged  to  be 
unconstitutional,  the  federal  judges  are  only  per- 
forming their  duty  according  to  their  oath  of  office, 
which  in  the  noble  language  prescribed  in  1789 
pledges  them  "to  administer  justice  without  respect 
to  persons,"  to  "do  equal  right  to  the  poor  and  to 
the  rich,"  and  to  "faithfully  and  impartially  dis- 
charge and  perform"  their  duty  "agreeably  to  the 
Constitution  and  laws  of  the  United  States."  An 
examination  of  the  cases  in  which  injunctions  have 
been  granted  against  the  enforcement  of  state  laws 
must  satisfy  any  candid  mind  that  in  the  great 
majority  of  cases  the  power  has  been  impartially 
exercised,  with  tact  and  wise  discretion,  and   that 


128  ELEVENTH   AMENDMENT 

such  injunctions  have  been  granted  only  when 
property  rights  seemed  to  be  threatened  with  ir- 
reparable injury.  It  would  be  too  much  to  expect 
infallibility  in  all  these  cases.  But  errors  are  cor- 
rected on  appeal. 

Assaults  upon  our  judiciary  and  unwarranted 
and  unjust  criticism  of  our  judges  undermine  the 
people's  trust  in  the  courts  and  tlireaten  the  whole 
structure  of  our  civilization.  The  United  States 
judges  are  justly  sensitive  to  public  opinion  and 
distressed  by  unjust  and  ignorant  criticism.  They 
know  how  important  it  is  that  they  should  retain 
public  confidence.  They  realize,  as  their  opinions 
constantly  show,  that  "next  to  doing  right,  the  great 
object  in  the  administration  of  public  justice  should 
be  to  give  public  satisfaction."  But  they  cannot 
sacrifice  truth  to  popularity,  the  Constitution  to 
present  expediency.  Those  who  assail  the  federal 
judges  should  bear  in  mind  that  the  founders  in 
their  wisdom  constituted  the  judicial  power  our 
bulwark  against  unadvised,  hasty  and  tyrannical 
action  on  the  part  of  those  in  power  and  our  shield 
against  "those  sudden  and  strong  passions  to  which 
we  are  exposed,"  and  which,  if  unchecked  and 
unrestrained,  may  lead  to  ruin.  However  unpopular 
and  disagreeable  the  task  may  be  of  setting  aside 
an  act  of  Congress  or  of  a  state  legislature,  however 
painful  it  must  be  to  any  just  man  to  become  the 
subject  of  calumny,  a  federal  judge  has  no  choice, 
no  discretion,  no  will  of  his  own,  but  must  hear 
and  decide  according  to  his  conscience  every  case 


ELEVENTH   AMENDMENT  129 

submitted  to  him  within  the  jurisdiction  of  his 
court  as  conferred  and  imposed  by  the  Constitution 
and  laws  of  the  United  States.  Let  us  always  bear 
in  mind  the  lofty  words  of  the  great  Chief  Justice  in 
the  case  of  Aaron  Burr,  in  the  decision  which  excited 
so  much  public  prejudice  and  clamor  one  hundred 
years  ago,  when,  speaking  of  the  duty  of  a  judge, 
he  said:  "If  he  has  no  choice  in  the  case;  if  there  is 
no  alternative  presented  to  him  but  a  dereliction  of 
duty,  or  the  opprobrium  of  those  who  are  denomi- 
nated the  world,  he  merits  the  contempt  as  well  as 
the  indignation  of  his  country  who  can  hesitate 
which  to  embrace."  ^ 

'  4  Cranch's  Reports,  Appendix,  pp.  5o7-5o8. 


CRITICISM   OF  THE   COURTS  ^ 

THE  attacks  upon  our  courts  which  are  con- 
stantly being  pubhshed  in  the  press  throughout 
the  country  disclose  a  feeling  of  hostility  towards 
the  present  system  of  administering  justice  that  is 
probably  the  most  portentous  sign  of  our  times. 
That  the  lawlessly  inclined,  who  are  fortunately 
still  in  the  minority,  should  be  hostile  to  those 
who  are  charged  with  the  duty  of  enforcing  and 
compelling  obedience  to  the  laws  of  the  state  or 
nation  is  not  at  all  surprising  and  is  perhaps  al- 
most inevitable  in  populous  communities.  But  it  is 
indeed  surprising,  and  a  legitimate  cause  for  pro- 
found anxiety  and  misgiving,  that  thousands  of 
honest,  industrious,  moral  and  law-abiding  citizens 
should  beheve  that  the  laws  are  not  being  impar- 
tially or  justly  administered,  and  that  this  erro- 
neous belief  should  be  inculcated,  not  only  by 
the  press  and  unprincipled  demagogues  and  poli- 
ticians but  by  reputable  leaders  of  American  labor 
and  American  public  opinion,  and  even  by  edu- 
cators. This  belief  has  become  so  widespread  and  so 
fixed  in  the  minds  of  vast  numbers  of  our  people  of 
all    classes,    educated    and    uneducated,    that   only 

1  Read  as  a  supplement  to  the  report  of  a  committee  appointed  by 
the  New  York  State  Bar  Association  submitted  at  the  thirty-sixth  annual 
meeting  of  the  Association  held  at  Utica,  January  a/i,  19 13. 


CRITICISM    OF    THE    COURTS  131 

the  most  exhaustive  consideration  and  discussion 
of  the  subject  would  be  now  adequate.  Numerous 
letters  received  by  the  sub-committee  of  the  New 
York  State  Bar  Association,  some  of  which  are 
submitted  with  its  report,  show  the  intensity  of 
the  hostility  towards  the  courts  and  the  extent  to 
which  it  is  based  upon  ignorance,  prejudice  and 
malice.  The  fact  that  the  writers  of  most  of  these 
letters  are  sincere  need  not  be  challenged,  but,  this 
being  conceded,  many  of  the  statements  show  an 
utter  failure  to  investigate  the  facts  and  an  entire 
indifference  to  the  truth,  and  some  are  obviously 
puerile,  or  inexcusably  inaccurate  and  reckless.  On 
the  other  hand,  the  spirit  shown  in  letters  from 
some  of  the  labor  leaders  must  inspire  the  hope  of 
their  loyal  assistance  in  an  impartial  and  thorough 
investigation.  A  great  amount  of  good  might  be 
accomplished  by  cooperation  with  them.  Such  a 
letter,  for  example,  as  that  recently  received  from 
Mr.  Hugh  Frayne,  the  general  organizer  of  the 
American  Federation  of  Labor,  indicates  that  ex- 
change of  views  might  lead  to  desirable  results. 
However  irksome  and  laborious  the  task  may  be, 
it  would  be  a  great  service  to  the  country  at  large 
if  some  joint  committee  appointed  by  the  New 
York  State  Bar  Association  and  the  other  bar 
associations  of  the  state  would  undertake  to  inves- 
tigate all  cases  affecting  labor  or  social  legislation 
and  publish  a  report  showing  the  true  facts  and 
the  principles  of  law  involved  in  each  case.  The 
pity  is  that  many  of  the  critics  of  our  courts  are 


132  CRITICISM    OF    THE    COURTS 

lamentably  ignorant  of  the  subjects  about  which 
they  write  or  declaim,  and  —  unconsciously  and  un- 
intentionally in  some  instances  —  misrepresent  and 
distort  the  facts. 

It  will  be  practicable  at  the  present  time  to  re- 
view only  a  few  of  the  points  suggested  by  the 
investigations  of  your  sub-committee. 

The  subject  of  just  compensation  to  employees 
for  injuries  received  in  the  course  of  their  work  is 
one  of  the  most  important  and  far-reaching  of  those 
discussed  by  our  correspondents,  and  its  increasing 
difficulties  and  complexities  call  for  much  more 
study  than  we  have  been  able  to  give  it.  The  revo- 
lution wrought  by  machinery,  the  inevitable  dan- 
gers attending  its  use,  the  crowding  of  men,  women 
and  children  into  factories  and  workshops  require 
modifications  in  the  rules  of  law  governing  the 
duties  and  responsibilities  of  employers.  The  rules 
of  the  common  law,  which  are  now  condemned  by  so 
many  and  sought  to  be  cast  aside,  were  originally 
dictated  by  the  soundest  considerations  of  public 
policy,  of  practical  affairs  and  government,  and  of 
justice  as  between  man  and  man.  The  duties  of  the 
master  toward  the  servant,  as  regulated  by  these 
rules,  were  humane  and  commensurate  with  the 
needs  of  the  times  that  evolved  them,  and  the  rules 
themselves  are  still  proper  and  just  in  the  great  ma- 
jority of  cases.  Under  them,  the  master  is  required 
to  exercise  the  same  degree  of  care  for  his  servant 
that  he  should  for  his  own  safety,  and  he  is  bound 
to  furnish  a  reasonably  safe  place  in  which  his  servant 


CRITICISM    OF    THE    COURTS  133 

is  to  work,  supply  reasonably  safe  implements  and 
machinery,  select  fellow-servants  reasonably  com- 
petent and  prudent,  and,  where  the  nature  of  the 
business  requires  an  overseer  or  superintendent, 
appoint  one  who  is  reasonably  competent  and 
prudent.  The  application  of  these  rules  regulating 
the  conduct  and  duties  of  the  master,  in  conjunction 
with  the  rules  regulating  the  conduct  and  duties  of 
the  servant  —  such  as  the  assumption  of  the  ordinary 
risks  of  the  employment,  the  fellow-servant  doctrine, 
and  the  rule  as  to  contributory  negligence  —  unavoid- 
ably creates  extremely  difficult  and  complex  ques- 
tions. These  rules  are  still  proper  and  just  in  their 
application  to  such  cases  as  involve  the  domestic 
relation  between  the  farmer  and  his  farm  hands, 
the  small  contractor  and  his  workmen,  the  house- 
holder and  his  house  servants,  the  butcher,  painter, 
carpenter,  or  blacksmith  and  his  workmen.  In 
all  these  cases  it  is,  it  seems  to  us,  as  true  on 
principle  to-day  as  it  was  half  a  century  ago  that 
the  master  is  not  bound  to  take  more  care  of 
his  servant  than  he  may  be  reasonably  expected 
to  take  of  himself,  and  that  a  servant  has  better 
opportunities  than  his  master  of  watching  and 
guarding  against  the  conduct  and  preventing  the 
negligence  of  his  fellow-servant.  It  is  as  true  now 
as  it  ever  was  that,  so  long  as  liability  is  based  on 
the  theory  or  principle  of  negligence,  a  servant  ought, 
generally  speaking,  to  be  held  to  assume  the  ordinary 
and  obvious  risks  of  the  employment  upon  which 
he  enters  and  for  which  he  presumably  stipulates  for 


134  CRITICISM    OF    THE    COURTS 

adequate  and  satisfactory  compensation.  Likewise, 
in  the  majority  of  cases,  it  is  as  true  to-day  as  it 
ever  was  that  the  servant  who  has  been  guilty  of 
contributory  neghgence  should  not  be  allowed  to 
charge  his  master  with  responsibility  for  the  injury. 
The  reasoning  of  the  judges  establishing  and  main- 
taining these  doctrines  at  the  common  law  has  never 
been  refuted.  Nevertheless,  they  are  mere  rules  of 
law,  subject  to  change,  not  by  the  judiciary,  but  by 
the  legislature;  and, in  the  opinion  of  the  writer,  there 
is  no  provision  in  the  state  or  national  constitution 
which  would  prevent  their  abrogation  if  this  were 
deemed  necessary  or  desirable  by  a  legislative  body. 

But  modern  industrialism,  the  development  of 
machinery,  the  employment  of  large  numbers  of 
men  and  women  in  crowded  factories,  and  work  in 
connection  with  dangerous  instrumentalities  of 
manufacture  and  transportation,  etc.,  have  changed 
conditions,  so  that  what  is  still  true  of  the  farm, 
the  household,  the  small  artisan,  the  carpenter,  the 
painter,  the  butcher,  the  grocer,  etc.,  is  not  true  of 
the  busy  hives  of  manufacture,  of  transportation  by 
steam  or  electricity,  or  of  other  hazardous  industries. 
The  increase  in  accidents,  the  apparent  certainty 
that  many  casualties  are  inevitable,  the  recklessness 
engendered  by  the  modern  struggle  for  existence, 
the  increasing  difficulty  in  many  employments  of 
measuring  degrees  of  fault,  the  pressing  necessities 
and  improvidence  of  the  poor :  these  and  other 
considerations  well  warrant  the  interposition  of 
the  legislature  as  the  lawmaking  power  of  the  state. 


CRITICISM    OF    THE    COURTS  135 

in  order  to  make  changes  in  the  law  —  changes 
which  the  courts  should  not  attempt  to  make,  for 
their  duty  or  function  is  not  to  legislate  but  to 
declare  what  the  law  has  been  or  now  is.  Instead, 
then,  of  abusing  the  courts,  how  much  wiser  and 
more  decorous  would  it  be  for  labor  organizations, 
labor  leaders,  or  social  reformers  to  petition  the 
legislature  to  amend  the  law,  and  to  abandon  the 
attempt  to  intimidate  and  coerce  the  judiciary  into 
making  the  desired  change.  One  of  our  correspond- 
ents speaks  of  "the  venomous  fellow-servant  doc- 
trine." Yet  the  responsibility  for  the  continuance 
of  that  doctrine,  if  it  has  become  undesirable  in  any 
employment  or  in  all  employments,  rests  wholly 
with  the  legislature  and  not  with  the  courts.  We 
should  be  surprised  if  any  lawyer  or  student  profess- 
ing the  slightest  knowledge  of  American  constitu- 
tional law  would  seriously  assert  that  the  legislature 
could  not  change  that  doctrine  without  amending  or 
tinkering  our  constitutions. 

It  is,  however,  fit  and  proper  to  add  that  many 
lawyers  and  laymen  are  convinced  that  to  abolish  the 
existing  rules  indiscriminately  in  every  case  where 
the  relation  of  master  and  servant  may  exist  would 
be  a  mistake  from  the  standpoint  of  public  pohcy 
and  practical  justice,  and  that  such  a  radical  measure 
would  do  more  harm  than  good.  Certainly  that 
is  the  judgment  of  competent  observers  of  the 
operation  of  the  British  statute.  A  change  in  the 
law  which  would  be  wise  if  confined  to  large  factories 
and  hazardous  employments,  to  labor  in  connection 


136  CRITICISM    OF    THE    COURTS 

wit] I  dangerous  machinery,  to  service  on  railroads, 
in  large  electrical  works,  etc.,  etc.,  might  be  ex- 
tremely unwise,  unjust  and  oppressive  if  applied, 
for  example,  to  the  small  farmer,  the  artisan,  the 
mechanic,  or  the  householder.  A  rule  concededly 
wise  and  just  in  the  one  case  might  be  the  extreme 
of  folly  and  oppression  in  the  other.  An  accident  on 
a  farm  caused  by  the  negligence  or  drunkenness  of  a 
farm  hand  might,  under  some  of  the  proposed  re- 
forms or  innovations,  bankrupt  the  most  prudent 
farmer  for  causes  quite  beyond  his  control;  and  a 
similar  disaster  might  easily  overtake  the  small 
artisan,  mechanic,  or  householder,  and  sweep  away 
the  savings  of  years.  It  is,  of  course,  no  answer 
to  say  that  the  farmer,  the  artisan,  the  house- 
holder employing  men  or  women  can  insure.  Why 
should  this  form  of  taxation  be  levied  upon  slen- 
der earnings,  which  are  frequently  insufficient  to 
make  both  ends  meet.^^  Why  should  the  farmer 
or  artisan  of  limited  means  be  compelled  to  pay 
tribute  to  private  insurance  companies  so  often  en- 
gaged in  combinations  to  extort  the  highest  possible 
premiums. ^^ 

Let  every  master  be  responsible  for  his  own 
negligence,  but  let  the  line  be  drawn  short  of  making 
every  master  —  every  employer  of  another  —  the 
insurer  of  the  safety  of  his  servant  to  the  extent  of 
rendering  the  master  liable  for  injuries  resulting  from 
no  fault  of  his  own  but  from  the  carelessness  and 
negligence  of  the  servant  himself  or  of  a  fellow- 
servant. 


CRITICISM    OF    THE    COURTS  137 

An  interesting  example  of  the  operation  of  a 
statute  in  connection  with  estabhshed  rules  of  law 
will  be  found  in  the  case  of  Knisley  vs.  Pratt.^  The 
legislature  had  prescribed  certain  devices  for  the  pro- 
tection of  women  and  children,  including  a  provision 
that  cogs  on  machinery  should  be  properly  guarded. 
In  enacting  this  provision,  as  the  courts  were  bound 
to  assume  by  the  settled  rules  of  construction,  the 
legislature  was  fully  aware  of  the  existing  law  in 
the  state  of  New  York  in  regard  to  the  assumption 
of  obvious  and  ordinary  risks  of  employment  by  men 
and  women  of  full  age  and  capacity.  The  plaintiff  in 
the  Knisley  case  was  a  woman  of  full  age  and  capac- 
ity, and  she  was  well  aware  of  the  danger  she  was 
running  in  approaching  too  near  machinery  in  opera- 
tion. Had  the  statute  been  competently  drawn,  it 
would  have  provided — assuming,  of  course,  the  drafts- 
man and  the  legislature  so  intended — ■  that  the  rule  of 
assumption  of  risk  should  not  apply  to  cases  within 
its  purview;  in  other  words,  it  would  have  provided 
that  the  master  should  be  liable  for  any  injury  to  a 
servant  arising  from  the  master's  neglect  to  furnish 
the  protection  required  by  the  statute  whether  or  not 
the  servant  knew  of  such  neglect  or  contributed  in 
any  way  to  his  own  injiuy.  No  provision  of  state  or 
federal  constitution  prevented  the  legislature  from  en- 
acting that  the  employer  should  be  absolutely  liable 
for  the  consequence  of  his  own  deliberate  neglect  to 
obey  a  statutory  provision  intended  to  protect  human 
life  and  particularly  the  lives  of  women  and  cliildren. 

'  i48  New  York  Reports,  p.  873. 


138  CRITICISM    OF    THE    COURTS 

There  is  not  the  remotest  intimation  by  the  court 
in  the  Knisley  case  that  the  legislature  could  not 
so  alter  the  law.  After  the  decision  in  that  case 
had  been  announced,  a  change  in  the  law  could 
have  been  readily  made  within  a  week,  for  the 
legislature  was  then  in  session  —  February,  1896. 
Yet  seventeen  years  have  passed  without  such  an 
enactment,  and  in  the  meantime  the  Court  of 
Appeals  has  been  assailed  before  the  whole  country 
for  its  lack  of  sympathy  with  the  poor  and  helpless 
and  with  social  progress  as  evidenced  among  other 
things  by  this  deci-sion! 

It  is  true  that  the  doctrine  of  the  Knisley  case  has 
been  recently  overruled  by  the  Court  of  Appeals  in 
the  case  of  Fitzwater  vs.  Warren. ^  But  many  lawyers 
believe  that  the  court  might  better  have  left  this 
change  to  the  legislature,  which  could  have  made  it 
seventeen  years  ago  if  it  had  so  desired,  and  not 
have  furnished  additional  ground  for  the  criticism 
that  our  courts  are  resorting  to  judicial  legislation. 
Despite  the  Fitzwater  case,  it  would  still  be  wise  for 
the  legislature,  if  it  deems  that  the  rule  of  law  should  be 
as  now  announced,  to  enact  a  properly  drawn  statute 
declaring  that  whenever  a  statutory  provision  re- 
quires a  master  to  supply  guards  or  other  protection 
for  his  servants  in  hazardous  employments  or  in 
connection  with  the  use  of  dangerous  macliinery, 
his  neglect  to  do  so  shall  render  him  liable  irre- 
spective of  the  doctrines  of  assumption  of  risk, 
fellow-servant's  fault,  or  contributory  negligence. 

1  206  New  York  Reports,  p.  355. 


CRITICISM    OF    THE    COURTS  139 

The  manner  in  which  nominations  have  been  made 
in  recent  years  for  judicial  office  and  particularly 
for  the  Court  of  Appeals  has  also  invited  very 
serious  criticism  on  the  part  of  our  correspondents. 

As  is  well  known,  the  bar  of  the  state  of  New 
York,  with  almost  entire  unanimity,  has  been 
endeavoring  for  many  years  to  separate  nomi- 
nations for  judicial  office  from  other  nominations, 
and  thereby  to  divorce  the  bench  from  politics.  It 
was  the  bar  that  has  urged  and  forced  the  renom- 
ination  of  judges  for  the  Court  of  Appeals  on  a 
non-partisan  basis.  It  was  the  bar  that  urged  and 
forced  the  renomination  and  election  of  Judge  Gray 
and  Cliief  Judge  CuUen  and  other  members  of  our 
highest  court.  It  is  simply  slanderous  to  charge 
that  any  of  the  present  judges  of  that  great  court 
were  nominated  at  the  request  or  dictation  of  what 
our  correspondents  call  "the  interests."  The  con- 
trary is  the  truth;  and  the  whole  history  and  con- 
duct of  the  court  refute  an  accusation  which  is  as 
contemptible  as  it  is  unfounded. 

The  bar  of  the  state  was  practically  unanimous  in 
urging  the  passage  last  year  of  the  measure  known 
as  the  Judicial  Candidates  Bill,  which  proposed 
that  the  names  of  judicial  candidates  should  no 
longer  be  printed  in  the  party  column  on  the  general 
and  official  ballot,  but  on  a  separate  ballot,  or  in  a 
separate  column  of  the  voting  machines,  without 
party  designation  in  either  case,  to  the  end  that 
candidates  for  judicial  office  might  be  voted  for  as 
individuals  and  not  as  members  or  candidates  of 


140  CRITICISM    OF    THE    COURTS 

any  political  party.  There  was  then  an  excellent 
opportunity  for  the  professed  social  reformers  and 
labor  leaders  who  are  so  vehemently  assailing  our 
judicial  system  to  aid  in  a  movement  to  ehminate 
from  pohtics  the  election  of  judges.  But  it  was  not 
availed  of.  The  bill  was  defeated.  It  had  Httle 
support  from  the  press  and  very  little,  if  any,  sup- 
port from  social  reformers  or  the  representatives  of 
labor.  It  will  undoubtedly  be  introduced  again  this 
year;  it  has  been  once  more  approved  by  the 
Association  of  the  Bar  of  the  City  of  New  York, 
and  it  will  probably  be  again  approved  by  the  state 
association  and  by  the  bar  of  the  state  at  large. 
Let  the  labor  organizations  now  assist  and  cooperate 
in  procuring  the  enactment  of  this  law,  and  help 
to  secure  the  election  of  judges  on  their  own  merits 
and  personal  character  apart  from  considerations  of 
pohtical  service  or  the  favor  or  support  of  pohtical 
leaders  or  bosses,  or  of  any  particular  class. 

A  few  years  ago  in  the  city  of  New  York  an 
earnest  attempt  was  made  by  the  bar  to  secure  the 
election  of  justices  of  the  Supreme  Court  on  a 
non-partisan  and  non-pohtical  basis.  A  committee 
of  members  of  the  bar  nominated  lawyers  of  the 
highest  standing  in  their  profession,  of  recognized 
ability  and  learning  and  of  unimpeachable  character. 
These  nominees  were  defeated,  and  to  that  defeat  the 
labor  organizations  greatly  contributed.  These  or- 
ganizations then  gave  no  support  whatever  to  the 
movement  to  secure  a  separation  of  the  courts  from 
pohtics,  and  they  were  quite  indifferent  to  the  nomina- 


CRITICISM    OF    THE    COURTS  141 

tion  of  men  of  the  highest  character  and  of  the  highest 
quahfications  for  judicial  office. 

The  plain  truth  on  this  point  may  serve  and  be 
useful  as  an  object  lesson.  The  least  competent  and 
the  least  experienced  of  the  justices  of  the  Supreme 
Court  in  the  county  of  New  York  and  elsewhere 
throughput  the  state  are  generally  those  who  have 
been  nominated  because  they  were  endorsed  by 
labor  organizations  or  were  supposed  to  be  accept- 
able to  them.  Everywhere  throughout  the  country 
it  is  said  that  whenever  labor  organizations  dictate  or 
control  the  nomination  of  judges,  they  select  lawyers 
of  inferior  education  and  talents  and  not  of  superior 
character  and  independence.  It  is  high  time  that 
this  truth  was  well  pondered  by  labor. 

One  of  the  real  causes  for  the  discontent  with  the 
administration  of  justice  in  our  state  courts,  and 
particularly  in  the  larger  cities,  is  that  judges  are 
nominated  and  elected  not  because  of  their  legal 
ability  and  personal  character,  but  because  of  their 
party  £d!iliations  or  their  supposed  friendship  or 
sympathy  for  or  inclination  to  favor  one  class  as 
against  another.  If  the  personnel  of  our  Court  of 
Appeals  and  Appellate  Divisions  has  thus  far  been 
kept  uniformly  high  and  pure,  it  is  because  of  the 
constant  efforts  of  the  bar.  If  labor  organizations 
and  the  people  at  large  will  now  cooperate  with 
the  bar,  who  in  this  matter  are  the  proper  leaders 
of  public  opinion,  there  will  be  infinitely  less  occasion 
for  complaints  of  delay  or  incompetency  or  partiality 
in  the  administration  of  justice.     The  multiplication 


142  CRITICISM    OF    THE    COURTS 

of  incompetent  judges  means  the  multiplication  of 
the  causes  of  delay,  new  trials,  denial  or  miscarriage 
of  justice,  expense,  discontent  and  suspicion.  The 
cure  for  these  evils  is  with  the  people  themselves, 
and  it  will  be  brought  about  only  when  they  shall 
insist  upon  the  nomination  and  election  of  lawyers 
of  learning,  character  and  independence. 

It  must  be  plain  to  all  who  have  studied  the  facts 
and  reflected  upon  existing  tendencies  that  during 
the  past  twenty  years  the  amendments  to  the  laws 
regulating  nomination  and  election  to  public  office 
have  served  to  strengthen  and  perpetuate  the  control 
of  political  leaders  and  political  machines.  Many 
bills  introduced  and  loudly  acclaimed  as  reforms 
have  in  truth  proved  to  be  not  reforms  at  all,  but 
steps  in  the  dark  and  backward. 

Some  of  our  correspondents  blame  the  courts 
for  the  "law's  delay,"  yet  there  is  no  defect  in 
our  system  for  which  competent  judges  are  less 
responsible.  In  most  instances  of  delay  in  civil 
cases,  the  blame  belongs  to  the  lawyers.  Nothing 
has  done  more  to  bring  the  administration  of 
justice  into  disrepute  than  the  practice  of  adjourn- 
ing cases  term  after  term  and  year  after  year  on 
excuses  which  sometimes  are  not  well  founded. 
There  need  be  no  unreasonable  delay  even  in  the 
city  of  New  York,  and  would  not  be,  if  lawyers  were 
ready  to  try  their  cases  when  they  are  first  reached 
on  the  calendars.  The  judges  are  constantly  com- 
plaining of  the  dilatoriness  of  the  bar.  Another  cause 
of  delay  is  the  practice  of  bringing  suits  and  taking 


CRITICISM    OF    THE    COURTS  143 

appeals  for  the  purpose  of  coercing  settlements. 
A  higher  sense  of  professional  responsibihty  ought 
to  be  cultivated,  and  there  should  be  some  severe 
penalty  or  professional  ostracism  for  lawyers  who 
abuse  the  process  of  the  courts  of  justice  and  dis- 
regard the  ethics  of  their  profession. 

In  like  manner,  in  criminal  cases  the  real  cause  of 
delay  in  nearly  every  case  is  the  failure  or  inability 
of  prosecuting  officers  to  press  their  cases  dihgently; 
and  the  frequent  change  in  the  personnel  of  our 
officeholders  is  likewise  a  cause  of  much  delay. 
Whenever  one  official  succeeds  another,  the  period 
during  which  the  new  incumbent  is  learning  what 
occurred  before  he  came  into  office  and  familiarizing 
himself  with  the  pending  cases  is  so  much  time  lost. 
Greater  permanency  in  the  tenure  of  office  of  prose- 
cuting officers  would  probably  conduce  to  greater 
speed  and  greater  efficiency  in  the  enforcement  of 
the  law.  Nor  can  it  be  doubted  that  many  pubhc 
officials  and  their  assistants  do  not  feel  the  same 
degree  of  responsibility  for  the  prompt  dispatch  of 
public  business  that  they  would  feel  if  representing 
private  clients.  The  remarks  of  Mr.  Justice  Scott 
in  the  recent  case  of  People  vs.  Turley  are  indeed 
timely,  and  should  be  commended  to  the  attention 
of  all  prosecuting  officers  throughout  the  state. 
He  used  the  following  language:  "There  is  much 
well-justified  complaint  at  the  present  time  of  the 
slowness  with  which  the  criminal  law  is  enforced, 
and  especially  of  the  great  length  of  time  wliich  is 
frequently  permitted  to  elapse  between  a  conviction 


144  CRITICISM    OF    THE    COURTS 

and  the  review  of  the  conviction  by  the  appellate 
courts.  Among  persons  not  conversant  with  the 
rules  of  criminal  procedure,  the  courts  are  not 
unnaturally,  but  most  unjustly,  charged  with  a 
large  share  of  responsibility  for  this  condition. 
The  blame  rests  elsewhere.  The  appellate  courts 
are  powerless  to  act  until  the  appeal  is  brought 
before  them  by  those  charged  with  that  duty. 
When  the  matter  is  brought  up  for  a  hearing,  the 
delay  is  ended,  and  the  appeal  is  invariably  promptly 
decided.  The  present  is  a  particularly  flagrant  case. 
The  defendant  was  convicted  in  March,  1909,  and 
was  almost  immediately  released  on  bail  pending 
an  appeal,  under  a  certificate  of  reasonable  doubt. 
The  record  is  not  voluminous,  and  the  questions  of 
law  involved  are  neither  difficult  nor  intricate,  and 
yet  the  defendant  has  been  at  large  for  three  years 
and  a  half  before  the  appeal  is  brought  on  for 
argument.  Of  course  under  such  circumstances 
the  defendant  was  quite  satisfied  and  was  in  no 
haste  to  have  his  appeal  argued.  The  duty  to  bring 
it  on  promptly  rested,  as  it  rests  in  every  case,  upon 
the  district  attorney,  who  had  it  in  his  power  at 
any  time  to  force  a  hearing  of  the  appeal  by  moving 
to  dismiss  it.  This  court  has  never  shown  itself 
to  be  unwilling  to  support  and  cooperate  with  the 
district  attorney  in  compelling  appeals  in  criminal 
cases  to  be  argued  with  all  reasonable  promptness. 
The  remedy  for  unreasonable  delays  in  the  final 
disposition  of  criminal  appeals  lies  in  his  hands."* 

'  i53  N.  Y.  Appellate  Division  Reports,  p.  674. 


CRITICISM    OF    THE    COURTS  145 

A  number  of  important  murder  cases  will  be 
readily  recalled  where  years  have  elapsed  between 
the  conviction  of  the  accused  and  the  tirgument  in 
the  Court  of  Appeals.  Not  only  does  this  unnec- 
essary delay  deprive  the  judgment  of  conviction  of 
much  of  its  effect  as  an  example  and  deterrent  prec- 
edent, but  in  cases  of  reversal  and  new  trials  evi- 
dence is  sometimes  lost,  and  the  guilty  thus  escape. 
In  the  latest  reported  murder  case  from  New  York 
county.  People  vs.  Lustig,^  the  defendant  was  con- 
victed of  murder  in  the  first  degree  in  June,  1910,  but 
the  appeal  was  not  brought  on  for  hearing  in  the 
Court  of  Appeals  until  June  i4,  191 2,  when  it  was 
decided  and  reversed  within  two  weeks  after  the 
argument,  viz.,  on  June  29,  191 2.  In  the  meantime, 
as  we  are  informed,  material  witnesses  had  disap- 
peared, and  the  defendant  is  now  at  large  on  his  own 
recognizance,  and  probably  will  not  be  tried  again! 

Another  case  of  apparently  inexcusable  delay  is 
People  vs.  Koerner.-  The  crime  of  murder  was  com- 
mitted in  September,  1896.  The  defendant  was  in- 
dicted within  a  month  thereafter,  and  was  convicted 
of  murder  in  the  first  degree  on  March  i,  1897.  The 
appeal  was  argued  in  the  Court  of  Appeals  Avithin 
four  court  months,  on  October  22,  1897,  and  the 
judgment  was  reversed  on  November  28,  1897. 
The  case  was  then  re- tried,  and  resulted  in  a  judg- 
ment of  guilty  of  murder  in  the  second  degree  on 

'  206  New  York  Reports,  p.  ifi:?. 

^  i54  New  York  Reports,  p.  355;  117  N.  Y.  Appellate  Division  Reports, 
p.  4o;  and  191  New  York  Reports,  p.  528. 


146  CRITICISM    OF    THE    COURTS 

March  i5,  1898.  The  records  of  the  courts  show 
that  the  appeal  from  this  judgment  was  not  brought 
on  for  argument  in  the  Appellate  Division  until 
December  12,  1906,  and  then  resulted  in  an  affirm- 
ance by  that  court  on  January  11, 1907,  and  that  the 
appeal  was  not  argued  in  the  Court  of  Appeals  until 
February  19,  1908,  when  the  judgment  was  affu-med 
without  opinion  in  less  than  three  weeks! 

Yet  for  the  delays  in  these  and  similar  cases  the 
courts  are  criticized  and  their  administration  of 
criminal  justice  intemperately  assailed  by  the  press 
and  other  critics,  notwithstanding  the  diligence 
of  the  judges  in  disposing  of  appeals  when  duly 
presented  for  their  consideration. 

It  may  be  true  that  the  pressure  of  innumerable 
cases  compels  the  district  attorney  in  New  York 
county  to  delay  the  argument  of  appeals;  but 
the  remedy  is  to  provide  him  with  additional 
competent  assistants  and  certainly  not  to  indulge 
in  indiscriminate  criticism  or  unfounded  abuse  of 
the  courts,  or  to  resort  to  panaceas  of  reform  in 
criminal  procedure,  which  too  often  only  multiply 
technicalities,  deprive  the  individual  of  necessary 
protection,  and  create  more  or  less  confusion, 

I  shall  now  ask  attention  to  the  subject  of  injunc- 
tions in  connection  with  strikes.  I  shall  not  argue 
the  proposition  that  strikers  in  industrial  contro- 
versies, or  labor  and  labor  organizations  should  not  be 
above  the  law,  or  a  law  unto  themselves.  I  assume 
that  this  is  still  a  self-evident  proposition  in  this 
state  and  may  still  be  taken  for  granted.     History 


CRITICISM    OF    THE    COURTS  147 

certainly  teaches  us  that  in  a  free  country  no  class 
can  safely  be  released  from  the  duty  of  obeying  the 
laws,  and  that  if  disobedience  be  permitted  in  favor 
of  the  laboring  classes,  the  industrious,  honest  and 
law-abiding  laborer  will  be  the  worst  sufferer  in  the 
long  run.  Nor  will  time  be  taken  to  point  out  that 
no  civilized  community  can  long  permit  any  class 
to  maim,  or  murder,  or  destroy  property,  or  violently 
prevent  others  from  earning  their  living,  in  order 
to  coerce  compliance  with  the  demands  of  that 
class. 

There  would,  of  course,  never  be  occasion  for  the 
use  of  injunctions  in  labor  disputes  if  there  were 
no  tlu-eats  of  violence  and  no  danger  of  injury  to 
persons  or  property.  If  the  labor  organizations 
of  this  country  will  now  earnestly,  effectively  and 
sincerely  cooperate  with  the  bar  in  the  endeavor  to 
put  an  end  to  violence  and  riots,  which  are  the 
unfortunate  but  apparently  inevitable  attendants  of 
every  protracted  modern  strike,  there  will  no  longer 
be  any  occasion  for  condemning  the  courts  on  ac- 
count of  the  issuance  of  injunctions,  for  there  will 
then  be  no  necessity  for  injunctions. 

One  aspect  of  the  injunction  problem  is  emphasized 
in  the  correspondence  now  submitted,  and  should  be 
dealt  with  here.  It  is  the  matter  of  giving  notice  to 
the  defendants  before  an  injunction  order  is  granted. 
Recently,  when  the  United  States  Supreme  Court 
adopted  its  new  rules,  including  one  as  to  injunctions, 
Mr.  Gompers  and  otlier  labor  leaders  loudly  pro- 
claimed that  they  had  secured  a  great  victory.    Thus, 


148  CRITICISM    OF    THE    COURTS 

Mr.  Gompers  is  reported  in  the  "Literary  Digest" 
of  November  i6,  1912,  as  calling  the  new  rule  a  re- 
form and  "a  step  in  the  right  direction,  and  one  of 
the  things  labor  has  long  been  fighting  for."  But,  as 
every  one  familiar  with  the  subject  well  knows, 
there  is  nothing  in  the  new  rules  that  materially 
changes  the  pre-existing  practice  in  regard  to  in- 
junctions. The  authoritative  treatises  on  federal 
equity  procedure  by  Mr.  Foster  and  Mr.  Street 
conclusively  show  this.  No  case  has  been  cited  to 
us  and  we  have  found  none  where  the  defendants 
enjoined  were  not  granted  by  the  courts  as  much 
facility  in  moving  to  dissolve  or  modify  injunction 
orders  as  is  provided  for  in  the  new  rule.  The 
learned  and  impartial  editor  of  the  "New  York  Law 
Journal"  well  said  in  the  issue  of  December  11,  191 2: 
"The  only  portion  of  the  new  procedure  which  has 
attracted  the  attention  of  the  daily  press  is  the 
rule  regarding  preliminary  injunctions.  This,  how- 
ever, is  no  more  than  an  adoption  of  good  New  York 
practice,  and,  indeed,  of  good  equity  practice  every- 
where, viz.:  that  no  ex  parte  injunction  shall  go 
out  except  as  a  stay-order  to  show  cause  why  a 
preliminary  injunction  should  not  issue." 

The  case  most  often  cited  by  labor  leaders  is 
known  as  the  Debs  case  growing  out  of  the  Pullman 
strike  at  Chicago  in  1894.  If  any  fair-minded  critic 
of  the  courts  will  take  the  trouble  to  read  the  unani- 
mous, patriotic  and  inspiring  opinion  of  the  Supreme 
Court  of  the  United  States  in  the  Debs  case,^  or  what 

^  i58  United  States  Reports,  p.  564- 


CRITICISM    OF    THE    COURTS  149 

ex-President  Cleveland  wrote  on  the  subject  in  his 
book  on  "Presidential  Problems,"  published  in  igo/i, 
he  will  at  once  reahze  that  the  issuance  of  the  injunc- 
tion order  and  the  subsequent  punishment  of  Debs 
and  his  associates  for  deliberately  and  defiantly  dis- 
obeying it  were  both  proper  and  necessary. 

For  nearly  twenty  years  and  since  the  Debs 
case  in  iSg/i-iSgB,  the  labor  leaders,  agitators  and 
demagogues  of  the  country  have  been  assailing  the 
courts  and  denouncing  "government  by  injunction" 
on  the  pretense,  among  others,  that  the  judges  denied 
the  defendants  in  that  case  any  opportunity  to  be 
heard,  when  as  a  matter  of  fact,  they  had  the  fullest 
notice  and  opportunity  to  be  heard,  but  deliberately 
elected  to  disobey  and  defy  the  court.  Indeed,  in 
no  jurisdiction  is  it  true  that  a  defendant  is  denied 
the  right  to  a  hearing  upon  the  matter  of  an  in- 
junction against  him,  and  the  sub-commiLlee  has 
been  unable  to  learn  of  a  single  case  in  which  a 
judge  has  refused  to  give  the  defendant  a  hearing 
either  upon  an  application  to  grant  or  continue  an 
injunction,  or  to  set  one  aside.  A  permanent  in- 
junction order  is  never  granted  without  notice  to 
those  affected  and  an  opportunity  to  be  heard;  nor 
is  even  a  temporary  restraining  order  issued  without 
notice  of  hearing  unless  the  danger  of  irreparable 
injury  from  delay  be  very  grave,  and  then  the  order 
is  made  returnable  at  the  earhest  practicable  date, 
so  as  to  afford  the  defendants  an  opportunity  to  be 
promptly  heard.  If  a  temporary  restraining  order 
should    be    granted    improvidently    on    insudicient 


150  CRITICISM    OF    THE    COURTS 

papers  and  upon  an  ex  parte  application,  it  is  well 
known  that  the  order  may  be  and  frequently  is 
vacated  immediately  on  the  ex  parte  application  of 
the  defendants.  Most  lawyers  are  familiar  with  such 
cases.  The  fact  is  that  laboring  men  have  always 
been  afforded  a  hearing  and  a  day  in  court  in  con- 
nection with  injunction  orders,  and  that  no  man  has 
ever  been  punished  for  contempt  by  an  American 
court  without  due  notice  to  him  and  full  opportu- 
nity to  present  his  excuse  or  defense.  Indeed,  were 
any  man  punished  without  notice  and  opportunity 
to  be  heard,  the  order  for  his  punishment  would  be 
without  jurisdiction  and  utterly  void. 

I  may  add  that  the  lawless  and  violent  among 
the  members  of  labor  organizations  will  not  in  the 
end  gain  any  real  liberty  or  advantage  for  the  labor- 
ing classes,  even  if  they  succeed  in  abolishing  the 
writ  of  injunction  in  labor  disputes  and  with  it  the 
power  of  the  courts  to  punish  disobedience  as  a 
contempt  of  court.  Destruction  of  property  and 
assaults  upon  peaceful  workingmen  cannot  perma- 
nently be  tolerated  in  any  civilized  community. 
Sooner  or  later,  the  government  must  afford  protec- 
tion in  one  form  or  another;  otherwise  chaos, 
anarchy  and  barbarism  are  inevitable.  If  injunc- 
tions cannot  be  issued  to  restrain  the  violent  and 
protect  the  property  of  the  innocent  and  law-abiding 
citizen,  simply  because  he  is  an  employer  or  property 
owner,  then  resort  will  finally  have  to  be  had  to  the 
club  of  the  policeman  or  the  bayonet  of  the  militia- 
man or  regular.     It  is  no  use  bhnking  this  certainty. 


CRITICISM     OF     THE     COURTS  151 

Tliat  was  plainly  the  alternative  presented  by  the 
Pullman  strike;  and  President  Cleveland  then 
wisely  preferred  the  orderly  and  peaceful  procedure 
of  a  court  of  justice  to  the  police  power  of  the  army. 
Under  military  rule,  the  laboring  man  may  receive 
no  hearing  at  all,  and  martial  law  with  its  arbitrary 
practices  and  despotic  power  will  have  to  be  sub- 
stituted for  the  regular  procedure  of  impartial  courts 
of  justice  acting  upon  full  notice  to  all  affected  and 
affording  full  opportunity  to  be  heard. 

The  New  York  Code  of  Civil  Procedure  in  sections 
6o2-63o  has  long  protected  the  rights  of  a  striker 
as  adequately  as  any  other  system  of  procedure, 
state  or  federal,  domestic  or  foreign,  and  even  better 
than  the  recent  rule  of  the  United  States  Supreme 
Court,  which  some  labor  leaders  are  acclaiming  as 
a  boon.  Lest  we  forget,  it  may  be  useful  to  recall 
the  exact  language  of  section  626,  which  has  been 
the  statutory  law  since  1896.  It  is  as  follows: 
"Where  the  injunction  order  was  granted  without 
notice,  the  party  enjoined  may  apply,  upon  the 
papers  upon  which  it  was  granted,  for  an  order 
vacating  or  modifying  the  injunction  order.  Such 
an  application  may  be  made,  without  notice,  to  the 
judge  or  justice  who  granted  the  order,  or  who  held 
the  term  of  the  court  where  it  was  granted;  or  to 
a  term  of  the  appellate  division  of  the  supreme 
court.  It  cannot  be  made  without  notice,  to  any 
other  judge,  justice  or  term,  unless  the  applicant 
produces  proof,  by  affidavit,  that,  by  reason  of  the 
absence  or  other  disability  of  the  judge  or  justice 


152  CRITICISM    OF    THE    COURTS 

who  granted  the  order,  the  apphcation  cannot  be  made 
to  him ;  and  that  the  apphcant  will  be  exposed  to  great 
injury,  by  the  delay  required  for  an  application  upon 
notice.  The  affidavit  must  be  filed  with  the  clerk; 
and  a  copy  thereof,  and  of  the  order  vacating  or  mod- 
ifying the  injunction  order,  must  be  served  upon  the 
plaintiff's  attorney,  before  that  order  takes  effect." 

As  is  well  known  to  all  lawyers,  a  restraining  or 
injunction  order  is  never  granted  by  a  state  or  federal 
court  in  New  York  without  notice  to  the  defendants 
except  when  proof  is  submitted  to  the  judge  by 
affidavit  or  verified  complaint  which  shows  that, 
unless  the  defendant  be  immediately  enjoined,  irrep- 
arable loss  or  damage  will  result  to  the  applicant 
before  the  matter  can  be  heard  on  notice.  If  the 
court  has  sworn  proof  thus  submitted  to  it  that  the 
defendants  are  threatening  immediate  injury  to 
person  or  destruction  of  property,  it  is  the  duty  of 
the  judge  —  and  may  it  ever  be  the  duty  of  every 
American  judge  —  to  issue  an  injunction  without 
delay,  for  delay  in  such  a  case  would  in  most  in- 
stances work  a  complete  denial  of  justice. 

If  our  system  of  equal  laws  impartially  admin- 
istered is  to  endure,  the  courts  must  continue  to 
shield  and  protect  the  individual  by  means  of  in- 
junction orders,  and  they  should  not  be  deprived  of 
the  power  of  exercising  one  of  the  most  beneficent 
remedies  afforded  by  any  system  of  laws  and  one 
indispensable  to  the  due  and  satisfactory  adminis- 
tration of  distributive  and  equal  justice. 

Some  typical  examples  of  misrepresentation  of  our 


CRITICISM    OF    THE    COURTS  153 

courts  by  leaders  of  public  opinion  will  be  recalled 
in  connection  with  the  Tenement  House  Tobacco 
case,  the  Bakers  case,  the  Ives  case,  and  other  cases 
involving  so-called  social  legislation/ 

When  Mr.  Roosevelt's  statements  in  regard  to  the 
Tenement  House  case  were  recently  challenged  by 
four  lawyers,  including  Senator  Root,  Mr.  Milburn 
and  Mr.  Marshall,  as  being  inaccurate  and  likely  to 
mislead  the  voters  of  the  state,  he  made  no  cor- 
rection whatever,  but  urged  the  people  to  accept 
his  statements  and  those  of  a  settlement  worker 
instead  of  the  record  of  the  case  before  the  Court 
of  Appeals.  This  incident  will  serve  to  show  the 
difficulty  of  combating  such  inaccurate  statements, 
which  are  given  the  utmost  publicity  by  the  press 
throughout  the  country,  whereas  the  refutation  is 
generally  ignored.  A  report  of  Mr.  Roosevelt's 
public  comments,  when  his  attention  was  called  to 
his  manifestly  incorrect  statement  of  the  decision 
in  the  Tenement  House  case,  quotes  him  as  saying: 

"I  am  informed  that  these  four  gentlemen  attacked 
the  statements  as  being  contrary  to  both  the  facts 
and  the  law.  The  first  was  the  case  of  the  tenement- 
house  cigar  manufacturers.  Now  I  will  read  to 
you  what  is  said  by  one  of  the  women  who  knows 
the  conditions  of  tenement-house  life  as  few  other 
women,  and  as  hardly  any  man,  knows  them,  by 
Florence  Kelly  in  a  book  called  'Some  Ethical  Gains 
through  Legislation,'  and  I  cordially  commend  to 
Mr.  Root  and  his  associates  who  signed  his  protest 

^  See  discussion  supra,  pp.  48-70. 


154  CRITICISM    OF    THE    COURTS 

to  study  that  book  and  to  ponder  what  is  meant  by 
the  word  'etliical'  in  connection  with  legislation. 
Of  the  Jacobs  case,  to  which  I  referred,  Mrs.  Kelly 
says:  'To  the  decision  of  the  Court  of  Appeals  in 
the  case  In  re  Jacobs  is  directly  due  the  continuance 
of  the  tenement  manufacture  and  of  the  sweating 
system  in  the  United  States  and  its  present  preva- 
lence in  New  York.'  That  is  the  statement  of  a 
woman  who,  as  regards  knowledge  of  tenement- 
house  conditions,  knows  so  much  more  than  those 
four  great  corporation  lawyers  that  her  little  finger 
is  thicker  than  their  loins  when  you  come  to  study 
what  they  know  and  what  she  knows  of  the  subject 
of  which  they  have  ignorantly  presumed  to  speak." 

And  yet  all  that  these  lawyers  did  was  to  point  out 
the  inaccuracy  of  Mr.  Roosevelt's  statements  as  to 
what  the  courts  had  held,  and  to  suggest  that  this 
inaccuracy  would  be  demonstrated  by  reference  to 
the  records  of  the  courts,  which  are  open  to  all  who 
care  to  take  the  trouble  to  ascertain  the  truth. 

It  should  be  recalled  in  connection  with  any  fair 
and  candid  consideration  of  the  Tenement  House 
case  that  the  constitutional  convention  of  1894  had 
ample  opportunity  to  change  the  rule  in  that  case 
if  it  had  then  been  thought  to  interfere  with  the 
attainment  of  "social  justice."  Although  the  subject 
was  called  to  the  attention  of  the  convention,  it  was 
deemed  advisable  to  make  no  change.  The  rule  is 
reasonable  and  well-settled  in  the  interpretation  of 
constitutions  and  it  was  well  known  to  the  distin- 
guished members  of  that  convention  that  "where  a 


CRITICISM    OF   THE    COURTS  155 

clause  or  provision  in  a  constitution,  which  has 
received  a  settled  judicial  construction,  is  adopted 
in  the  same  words  by  the  framers  of  another  con- 
stitution, it  will  be  presumed  that  the  construction 
thereof  was  likewise  adopted." 

Another  judicial  decision  denounced  by  Mr.  Roose- 
velt a  few  days  before  the  last  election  is  the  Knisley 
case  discussed  above.  Speaking  of  this  case,  he  told 
his  audience,  and  through  the  press  told  the  whole 
country,  that  "the  Court  of  Appeals  tlu-ew  out 
the  case  and  declared  the  law  unconstitutional  on 
this  ground:  that  the  legislature  could  not  interfere 
with  the  hberty  of  that  girl  in  losing  her  arm.  .  .  . 
The  trouble  was  that  they  knew  law  but  didn't 
know  right,  and  still  more,  as  I  have  stated,  that 
they  had  arrogated  to  themselves  the  riglit  that  the 
people  should  have  —  the  right  to  decide  what  the 
common  sense  and  justice  of  the  people  demand." 
Yet  there  was  not  one  word  anywhere  in  the  record 
or  in  the  opinion  of  the  Court  of  Appeals  which 
suggested  that  the  act  was  unconstitutional  or  that 
the  legislature  did  not  have  full  power  to  change 
the  common  law  rule  in  such  cases  and  make  the 
employer  liable  to  his  injured  workmen  or  work- 
women if  he  failed  to  comply  with  a  statute  prescrib- 
ing guards  or  other  protection  for  employees.  The 
most  superficial  investigation  would  have  disclosed 
the  fact  that  the  Court  of  Appeals  has  never  inti- 
mated in  any  case  that  such  a  statute  would  be 
unconstitutional,  and  that  in  the  Knisley  case  it 
neither  had  before  it  nor  decided  any  question  con- 


156  CRITICISM  OF  THE  COURTS 

cerning    the    constitutionality    of    an    act    of    the 
legislature. 

Shortly  before  the  election,  Mr.  Roosevelt  caused 
to  be  published  in  the  "Saturday  Evening  Post"  of 
Philadelphia,  under  the  title  of  "The  Deceitful 
Red  Herring,"  the  following  statement:  "Our  plat- 
form demands  an  eight-hour  law  for  women  in 
industries.  .  .  .  But  the  Court  of  Appeals  of 
New  York  has  said  that  the  ten  millions  of  people  of 
my  state  have  not  got  that  right  if  they  wish  to 
exercise  it.  In  New  York  the  people  did  not  ask 
for  an  eight-hour  day  —  asked  for  only  a  ten-hour 
day  for  women.  Then  the  Court  of  Appeals  said  that 
under  their  interpretation  of  the  Constitution  the 
small  sweat-shop  keeper  or  the  big  factory  owner 
may  work  haggard  women  twelve,  fourteen  or  sixteen 
hours  a  day,  if  he  chooses,  and  we  cannot  stop  it." 

As  a  matter  of  fact,  however,  as  the  slightest  in- 
vestigation would  have  disclosed,  the  New  York 
Court  of  Appeals  had  never  decided  anything  of  the 
kind.  Moreover,  there  was  in  our  state  when  Mr. 
Roosevelt  published  this  statement  a  statute  limit- 
ing the  hours  of  labor  for  women  to  nine  hours  per 
day  and  fifty-four  hours  per  week,^  and  for  thirteen 
years  prior  to  the  recent  amendment  there  had  been 
a  statute  limiting  the  hours  of  labor  of  women  to  ten 
hours  per  day  and  sixty  hours  per  week.  These 
statutes  had  been  regularly  enforced  for  years,  and 
their  constitutionality  had  never  been  even  ques- 
tioned, so  far  as  I  have  been  able  to  ascertain. 

^  See  the  New  York  Labor  Law,  sec.  77. 


CRITICISM    OF    THE    COURTS  157 

Immediately  after  the  publication  of  this  article  in 
the  "  Saturday  Evening  Post,"  a  communication  was 
addressed  to  the  publisher  by  a  well-known  and 
reputable  member  of  the  New  York  bar,  Mr.  Alfred 
E.  Ommen,  pointing  out  the  misstatement  in  regard 
to  the  Court  of  Appeals  and  conclusively  showing  its 
error;  but  this  important  periodical,  with  perhaps 
the  largest  circulation  of  any  American  weekly,  saw 
fit  to  leave  uncorrected  this  untrue  and  grossly  mis- 
leading statement,  and  it  has  not  yet  withdrawn  it, 
and  probably  never  will  do  so. 

Such  is  the  tenor  of  the  criticisms  of  tlic  courts 
to  be  found  in  public  speeches  and  in  all  forms 
of  publication.  They  find  constant  repetition  in 
the  press,  and  carry  the  authority  of  distinguished 
leaders  of  pubhc  opinion  and  of  men  who  at  the 
present  time  have  the  ear  and  the  confidence  of 
the  people.  The  statements  of  such  men  are 
naturally  accepted  as  accurate  and  true.  Who 
would  believe  it  possible  that  any  such  statements 
as  the  above  could  be  made  by  an  ex-President 
of  the  United  States  unless  they  were  true.^  As 
the  draft  of  this  report  is  being  revised,  an  adver- 
tisement proclaims  a  renewal  by  Mr.  Roosevelt 
of  his  attack  on  the  courts,  and  a  new  assailant 
and  critic  appears  in  the  person  of  Mr.  WilHam 
Randolph  Hearst,  who  seems  desirous  to  emulate 
Mr.  Roosevelt  in  his  abuse  of  the  courts.  The 
press  at  large  continues  to  give  the  fullest  pub- 
licity to  all  attacks  on  the  courts  and  little  or  no 
space  to  any  refutation  of  them.     The  judges  are 


158  CRITICISM    OF    THE    COURTS 

being  misrepresented  and  assailed  on  all  sides.  They 
cannot  defend  themselves.  The  bar  at  large  so 
far  has  seemed  indifferent;  and  in  the  great  forum 
of  public  opinion  judgment  is  going  by  default. 

If  these  misleading  criticisms  are  not  refuted,  and 
the  courts  are  not  defended,  they  may  bend  before 
the  storm  of  undeserved  censure  and  the  clamor 
of  the  crowd.  There  is  grave  danger  that  the 
judges  will  be  unconsciously  intimidated  and  coerced 
by  this  abuse.  Indeed,  some  recent  decisions  are 
ominous.  Is  it  not  then  fit  and  proper  that  the 
members  of  our  profession  should  charge  them- 
selves specially  with  the  task  of  defending  the 
courts  and  placing  the  facts  before  the  people  .^^ 
The  bar  associations  of  the  country  will  never  be 
called  upon  to  render  a  greater  service  to  the  pro- 
fession and  to  the  community  at  large  than  that  of 
stemming  this  tide  of  misrepresentation  and  in- 
temperate abuse,  and  of  restoring  confidence  in 
the  learning,  impartiahty  and  independence  of  our 
judges,  in  the  justice  of  their  decisions,  and  in 
the  necessity  of  their  enforcing  constitutional  re- 
straints. 


GRADUATED  OR  PROGRESSIVE 
TAXATION  ' 

THE  recent  message  of  the  President  to  the 
Congress  has  strikingly  brought  to  the  attention 
of  the  American  pubhc  the  sul)ject  of  graduated  or 
progressive  taxation  upon  inheritances  and  incomes. 
Acting  upon  the  suggestions  contained  in  the  mes- 
sage, bills  providing  for  such  taxes  have  already 
been  introduced  in  the  House  of  Representatives. 
Amendments  to  the  Constitution  have  also  been 
proposed,  one  of  which  is  to  authorize  Congress  to 
tax  inheritances  amounting  to  or  exceeding  $5o,ooo 
and  to  levy  an  income  tax  without  apportionment. 
The  pending  bills  provide  that  successions  of  $10,000 
and  under  and  incomes  of  $4,000  and  under  are  to 
be  wholly  exempted  from  the  proposed  taxes.  The 
proposed  graduated  scales  are  to  run  from  three- 
quarters  of  one  per  cent,  on  inheritances  or  suc- 
cessions over  $10,000  and  not  exceeding  $25,ooo  up 
to  twenty-five  per  cent,  on  inheritances  or  successions 
exceeding  $3o,ooo,ooo,  and  from  two  per  cent,  on 
incomes  exceeding  $4,000  per  annum  and  not  ex- 
ceeding $8,000  up  to  six  per  cent,  on  all  incomes 
over  $6/i,ooo.     It  is  also  suggested  that  Congress  by 

'    Address  dcliven^d  hel'ore  lh(^  Nalional  (^.ivic  Federation  at  its  annual 
meeting  li<'ld  in  New  York,  December  I'S,  1906. 


100  GRADUATED    TAXATION 

means  of  such  taxes  should  seek,  not  merely  to  raise 
revenue  for  the  support  of  the  national  government, 
but  also  to  solve  social  problems  by  breaking  up 
fortunes  assumed  to  be  swollen  to  an  unhealthy  size 
and  thus  bring  about  a  redistribution  of  wealth. 

In  considering  these  proposed  measures,  it  should 
be  borne  in  mind  that,  if  they  or  any  similar  proposi- 
tions become  laws,  the  result  w  ill  be  —  and  such 
undoubtedly  is  the  intention  —  to  exempt  the  ma- 
jority of  property  owners  from  this  form  of  taxation 
and  to  cast  the  burden  upon  a  very  small  minority. 
It  should  also  be  realized  that  this  proposed  pro- 
gressive taxation,  particularly  as  to  inheritances,  is 
conceded  to  be  only  a  first  step,  and  that  increases 
in  the  scale  of  progression  are  contemplated  and  will 
certainly  follow.  Indeed,  the  President  declares 
that  "at  first  a  permanent  national  inheritance  tax 
.  .  .  need  not  approximate,  either  in  amount  or 
in  the  extent  of  the  increase  by  graduation,  to  what 
such  a  tax  should  ultimately  be."  As  the  states 
have  full  power  to  levy  taxes  on  inheritances  and 
at  the  present  time  are  deriving  probably  as  much 
as  $10,000,000  per  annum  from  this  source,  it  must 
be  manifest  that,  if  the  scale  adopted  by  Congress 
be  high,  the  resources  of  the  states  will  be  corre- 
spondingly curtailed.  In  case  of  conflict,  national 
taxes  would  take  precedence  over  state  taxes.  We 
should  also  bear  in  mind  that  the  power  to  tax  is 
the  strongest  of  all  governmental  powers,  that  it 
involves  the  power  to  destroy,  that  it  generally 
knows    no    limitation    except    the    discretion    and 


GRADUATED    TAXATION  161 

moderation  of  the  lawmakers,  and  that  of  all  powers 
it  is  the  one  most  liable  to  abuse. 

From  the  time  of  the  Declaration  of  Independence 
to  the  present  hour,  the  distinctive  feature  of  the 
American  system  of  government  has  been  equality 
before  the  law,  not  merely  equality  of  rights  but 
equality  of  duties  and  equality  of  burdens.  Equality 
has  been  demanded  in  all  things  including  especially 
taxation.  The  few  exceptions  in  taxation,  particu- 
larly in  times  of  war,  do  not  affect  the  general  rule 
that  has  been  followed.  The  courts  have  declared 
that  according  to  American  ideals  "common  justice 
requires  that  taxation,  as  far  as  possible,  should  be 
equal."  Experience  has  shown  that  the  only  ef- 
fectual protection  against  injustice  and  discrimina- 
tion in  taxation  lies  in  the  observance  of  some  rule 
of  equality  and  apportionment;  and,  although  it  is 
true  that  absolute  equahty  is  not  always  attainable, 
nevertheless  an  approximation  to  equality  should 
be  regarded  as  indispensable.  As  Hamilton  said, 
"The  genius  of  liberty  reprobates  everything  arbi- 
trary or  discretionary  in  taxation."  And  Judge 
Cooley  in  his  famous  work  on  "Constitutional 
Limitations"  said:  "It  is  of  the  very  essence  of 
taxation  that  it  be  levied  with  equality  and  uni- 
formity, and  to  this  end,  that  there  should  be  some 
system  of  apportionment.  Where  the  burden  is 
common,  there  should  be  common  contribution  to 
discharge  it.  Taxation  is  tlie  equivalent  for  the 
protection  wliich  the  government  affords  to  the 
persons  and  property  of  its  citizens;  and  as  all  are 


162  GRADUATED    TAXATION 

alike  protected,  so  all  alike  should  bear  the  burden, 
in  proportion  to  the  interests  secured."  ^ 

In  proportional  or  equal  taxation,  whereby  every 
property  owner  contributes  toward  the  expenses  of 
the  common  government  according  to  the  amount 
of  property  he  owns  or  inherits,  or  according  to  the 
income  he  enjoys,  we  find  a  perfectly  safe  and 
consistent  rule  and  a  definite  and  logical  principle 
upon  which  to  work.  Proportional  taxation  subjects 
to  the  burden  of  government  fairly  and  equally  all 
property  owners  without  distinction  and  without 
discrimination.  Nothing  is  left  to  mere  discretion  or 
to  the  play  of  arbitrary  and  irresponsible  power, 
and  no  class  is  likely  to  be  unjustly  singled  out  or 
discriminated  against.  Where  property  is  as  gen- 
erally distributed  as  it  is  in  this  country,  a  propor- 
tional tax  ordinarily  reaches  in  one  form  or  another 
a  majority  of  the  constituents  of  those  who  vote  the 
taxes,  and  the  sense  of  responsibility  to  these  con- 
stituents operates  as  a  conservative  force  and  as  a 
check  upon  unfair  and  unjust  taxes,  as  well  as  upon 
improvident  and  extravagant  expenditures.  A  pro- 
portional tax  generally  creates  a  large  body  of  tax- 
paying  voters  whose  property  interests  impel  them  to 
watch  their  representatives  closely  and  to  hold  them 
to  strict  accountabihty.  We  then  have  taxation  in  its 
practical  operation  going  hand  in  hand  with  represen- 
tative responsibihty,  which  was  the  cardinal  principle 
for  which  our  War  of  Independence  was  fought.  A 
legislator  who  is  conscious  of  the  fact  that  a  large,  if 

1  Constitutional  Limitations,  7th  ed.,  p.  706. 


GRADUATED    TAXATION  163 

not  a  controlling,  number  of  his  constituents  will  feel 
the  burden  of  any  tax  he  votes,  is  necessarily  more 
careful,  more  prudent,  more  economical  and  more 
inclined  to  be  just  than  if  no  such  sense  of  responsi- 
bility exists. 

On  the  other  hand,  where  the  great  majority  of 
voters  are  to  be  exempted  from  taxation,  and  where, 
accordingly,  they  will  feel  that  they  have  no  per- 
sonal interest  in  governmental  expenditures,  they  will 
be  hkely  to  take  little  or  no  pains  to  see  that  there 
is  a  fair  apportionment  of  taxes  which  others  must 
pay,  or  any  economy  in  governmental  expenditures 
for  wliich  others  must  provide.  Their  sense  of 
justice  and  civic  duty  will  become  blunted.  It  will 
follow  that,  if  the  lawmakers  are  at  liberty  to  enact 
laws  which  exempt  the  great  majority  of  their  constit- 
uents from  taxation  and  cast  the  burden  and  expense 
of  government  on  the  few  rich,  frequently  less  than 
two  or  three  per  cent,  of  the  voters  in  their  respec- 
tive districts,  there  will  exist  no  practical  restraint 
upon  expenditure,  but,  on  the  contrary,  every  temp- 
tation to  extravagance,  wastefulness  and  injustice. 

A  graduated  or  progressive  tax  is  necessarily 
arbitrary,  for  there  is  no  definite  rule  or  principle 
to  apply  to  the  scale.  The  rate,  reasonable  at 
first,  may  ultimately  become  confiscatory.  There  is 
nothing  to  check  or  stop  the  ascending  scale.  One 
act  of  injustice  will  load  to  another.  The  appetite 
will  grow  and  produce  fresh  injustice.  If  a  tax  of 
twenty-five  per  cent,  on  large  fortunes  now  seems  to 
some  but  a  moderate  beginning,  where  will  the  tax 


164  GRADUATED    TAXATION 

stop,  and  who  is  to  determine  what  is  or  is  not 
reasonable  and  beyond  what  point  a  legislative  body 
shall  not  go?  A  few  advocates  of  progressive  taxation 
have  already  suggested  fifty  per  cent,  as  a  maximum 
applicable  to  the  so-called  surplus  of  large  fortunes, 
but  others  more  radical  and  less  responsible  may 
readily  advocate  a  tax  of  one  hundred  per  cent, 
upon  the  surplus  they  regard  as  superfluous  or  un- 
healthful.  There  is,  indeed,  no  limit  to  the  possible 
ascent  in  the  scale  of  progression,  and  no  power  to 
prevent  abuse  and  oppression  on  the  part  of  tem- 
porary and  irresponsible  majorities.  The  rich  would 
then  be  completely  at  th^  mercy  of  mere  numbers. 

During  the  French  Revolution,  the  experiment  was 
tried  under  the  name  of  compulsory  loans.  These 
loans  finally  absorbed  fifty  per  cent,  of  such  incomes 
as  the  majority  of  the  legislative  assembly  saw  fit 
to  consider  as  abondants,  and  one  hundred  per  cent, 
of  all  incomes  which  they  thought  were  superflus. 

The  late  W.  E.  H.  Lecky,  one  of  the  most  eminent 
historians  of  our  day,  wrote  as  follows  of  progressive 
taxation  in  his  work  on  "Democracy  and  Liberty": 
"When  the  principle  of  taxing  all  fortunes  on  the 
same  rate  of  computation  is  abandoned,  no  definite 
rule  or  principle  remains.  At  what  point  the  higher 
scale  is  to  begin,  or  to  what  degree  it  is  to  be  raised, 
depends  wholly  on  the  policy  of  governments  and 
the  balance  of  parties.  The  ascending  scale  may  at 
first  be  very  moderate,  but  it  may  at  any  time, 
when  fresh  taxes  are  required,  be  made  more  severe, 
till  it  reaches  or  approaches  the  point  of  confiscation. 


GRADUATED    TAXATION  165 

No  fixed  line  or  amount  of  graduation  can  be  main- 
tained upon  principle,  or  with  any  chance  of  finality. 
The  whole  matter  will  depend  upon  the  interests 
and  wishes  of  the  electors;  upon  party  politicians 
seeking  for  a  cry  and  competing  for  the  votes  of 
very  poor  and  very  ignorant  men.  Under  such  a 
system  all  large  properties  may  easily  be  made 
unsafe,  and  an  insecurity  may  arise  which  will  be 
fatal  to  all  great  financial  undertakings.  The  most 
serious  restraint  on  parliamentary  extravagance 
will,  at  the  same  time,  be  taken  away,  and  majorities 
will  be  invested  with  the  easiest  and  most  powerful 
instrument  of  oppression.  Highly  graduated  taxa- 
tion realizes  most  completely  the  supreme  danger 
of  democracy,  creating  a  state  of  things  in  which 
one  class  imposes  on  another  burdens  which  it  is 
not  asked  to  share,  and  impels  the  state  into  vast 
schemes  of  extravagance,  under  the  belief  that  the 
whole  cost  will  be  thrown  upon  others." 

In  McCulloch  on  "Taxation,"  for  fifty  years  the 
standard  treatise  in  England  on  the  subject,  the 
following  language  is  used:  "It  is  argued  that,  in 
order  fairly  to  proportion  the  tax  to  the  ability  of 
the  contributors,  such  a  graduated  scale  of  duty 
should  be  adopted  as  should  press  lightly  on  the 
smaller  class  of  properties  and  incomes,  and  increase 
according  as  they  become  larger  and  more  able  to 
bear  taxation.  We  take  leave,  however,  to  protest 
against  this  proposal,  which  is  not  more  seductive 
than  it  is  unjust  and  dangerous.  .  .  .  If  it  either 
pass  entirely  over  some  classes,  or  press  on   some 


166  GRADUATED    TAXATION 

less  heavily  than  on  others,  it  is  unjustly  imposed. 
Government,  in  such  a  case,  has  plainly  stepped  oul 
of  its  proper  province,  and  has  assessed  the  tax,  not 
for  the  legitimate  purpose  of  appropriating  a  certain 
proportion  of  the  revenues  of  its  subjects  to  the 
public  exigencies,  but  that  it  might  at  the  same 
time  regulate  the  incomes  of  the  contributors;  that 
is,  that  it  might  depress  one  class  and  elevate 
another.  The  toleration  of  such  a  principle  would 
necessarily  lead  to  every  species  of  abuse." 

The  well-known  French  political  economist  and 
scientist  Leroy-Beaulieu  in  his  works,  Traite 
d'Economie  Politique  and  Science  des  Finances, 
discusses  at  length  the  whole  subject  of  graduated 
or  progressive  taxation,  and  condemns  it  as  vicious 
in  theory  and  unwise  and  unjust  in  practice.  Among 
other  things  he  says:  "Progressive  taxation  consti- 
tutes actual  spohation.  It  violates,  besides,  the 
rule,  established  by  all  civilization,  that  taxation 
ought  to  be  imposed  with  the  full  consent  of  the 
taxpayer;  for,  it  is  quite  clear,  that  in  this  case,  it 
is  the  mass  of  the  voters  who  relieve  themselves  of 
the  heavy  weight  of  the  tax  and  cast  it  upon  the 
few,  and  these  few  do  not  consent,  even  tacitly,  to 
the  excess  with  which  the  government  wishes  to 
burden  them.  When  the  rate  of  the  tax  is  equal 
for  all,  we  can  consider  that  the  vote  for  the  tax  by 
the  legislature  carries  with  it  the  implied  acquies- 
cence of  all  the  assessable;  otherwise  not.  .  .  . 
Every  system  of  progressive  taxation,  however 
attenuated,  is  iniquitous  and  dangerous." 


GRADUATED    TAXATION  167 

And  the  same  conclusions  have  been  reached  by 
a  number  of  other  distinguished  French  scholars 
and  statesmen,  among  whom  may  be  cited  Thiers, 
Beauregard  and  Stourm. 

The  right  of  the  states  to  levy  progressive  and 
unequal  taxes  on  inheritances  and  testamentary 
dispositions  is  frequently  sought  to  be  upheld  upon 
the  theory  that  the  power  of  our  legislatures  over 
successions  to  the  property  of  decedents  is  unlimited, 
that  the  right  to  succeed  is  a  mere  statutory  privi- 
lege, and  that  our  lawmakers  may  arbitrarily  grant 
or  withhold  that  privilege  at  their  will  and  discretion. 
It  is,  however,  far  from  established  that  any  such 
arbitrary  and  unrestrained  power  is  vested  in  our 
state  legislatiu-es  as  that  of  denying  wholly  the 
right  of  inheritance  or  of  testamentary  disposition, 
or  of  discriminating  in  the  regulation  or  grant  of 
the  privilege.  The  power  to  regulate  the  exercise 
of  any  right  does  not  necessarily  imply  the  power 
to  deny  it  altogether.  All  rights  of  property  as 
well  as  of  personal  liberty  are  subject  to  reasonable 
regulation,  but  this  does  not  involve  the  power 
absolutely  or  arbitrarily  to  destroy  such  rights. 
The  right  of  inheritance  by  children  was  not  originally 
the  creation  of  statute  law  at  all,  although  the 
contrary  is  often  assumed.  It  was  a  customary 
right  long  before  the  Conquest  and  prior  to  any 
statute  of  which  we  have  record.  It  is  treated  by 
legal  historians  as  "our  common  law  of  inheritance." 
In  the  latest  authoritative  history  of  the  English 
law,  that  by  Pollock  and  Maitland,  the  authors  say 


168  GRADUATED    TAXATION 

that  "in  calling  to  our  aid  a  law  of  intestate  succes- 
sion, we  are  not  invoking  a  modern  force,"  and  that 
"the  time  when  no  such  law  existed  is  in  strictest 
sense  a  prehistoric  time."  We  find  that  it  was  a 
right  already  established  in  every  one  of  the  thirteen 
original  states  at  the  time  the  national  government 
was  founded;  that  it  has  always  existed  in  civilized 
countries,  so  far  as  we  have  any  knowledge;  that  it 
was  recognized  in  the  Twelve  Tables  as  a  right 
among  the  Romans;  that  it  was  a  right  long  before 
among  the  Egyptians,  and  that  it  pervades  the 
Mosaic  law.  A  distinguished  writer  declares  it  to 
be  the  general  direction  of  Providence  itself.  And 
Chancellor  Kent  said  that  "nature  and  policy  have 
equally  concurred  to  introduce  and  maintain  this 
primary  rule  of  inheritance  in  the  laws  and  usage 
of  all  civilized  nations." 

The  power  of  testamentary  disposition  undoubt- 
edly developed  as  a  limitation  upon  the  right  of  in- 
heritance and  in  order  to  prevent  escheat  for  want 
of  heirs.  But  however  originating  or  evidenced  — 
whether  in  old  customs  or  in  the  practice  of  post- 
obit  gifts  —  the  right  has  been  recognized  from  time 
immemorial.  As  Blackstone  said  in  his  "Commen- 
taries," "in  England  this  power  of  bequeathing  is 
coeval  with  the  first  rudiments  of  the  law,  for  we 
have  no  traces  or  memorials  of  any  time  when  it  did 
not  exist." 

Whatever  may  be  the  general  language  to  be  found 
in  some  judicial  decisions,  and  whatever  may  be 
the  extreme  power  of  our  state  legislatures  in  the 


GRADUATED    TAXATION  169 

abstract,  it  is  hardly  conceivable  that  any  state 
would  attempt  to  escheat  or  confiscate  all  the 
property  of  decedents  to  the  exclusion  of  children 
and  near  relatives,  or  that  it  would  wholly  deny 
the  right  of  testamentary  disposition.  At  any  rate, 
if  escheat  or  confiscation  were  ever  decreed,  it 
would  have  to  be  by  laws  applying  equally  to  all 
decedents,  and  not  merely  to  a  selected  class.  The 
guaranties  of  the  fourteenth  amendment  would  pre- 
vent any  discrimination. 

But,  however  unhmited  the  power  of  the  states 
may  be  in  this  regard,  there  can  certainly  be  no 
doubt  that  it  was  not  the  intention  of  the  framers 
of  the  Constitution  of  the  United  States  to  delegate 
to  Congress  the  power  to  regulate  successions  to  the 
estates  of  decedents  or  the  privilege  of  testamentary 
disposition  or  inheritance.  No  one  has  yet  seri- 
ously claimed  that  any  such  authority  is  within 
the  legitimate  sphere  of  the  national  government  as 
contemplated  by  its  founders.  The  power  of  regulat- 
ing successions  to  the  property  of  decedents  was 
reserved  to  the  states,  and  the  courts  would  un- 
doubtedly hold  that  any  direct  attempt  on  the  part 
of  Congress  to  regulate  successions  as  such,  or  the 
ownership  or  transfer  of  property,  was  in  excess  of 
its  powers.  In  dealing  with  successions,  therefore, 
Congress  can  only  exercise  the  power  of  taxation. 

Yet  it  is  urged  that,  as  Congress  has  the  power  to 
tax  successions,  it  may  under  the  guise  of  exercising 
that  power  regulate  inheritances  and  thereby  break 
up  large  fortunes  and  force  a  redistribution  of  w  ealth. 


170  GRADUATED    TAXATION 

In  Other  words,  the  argument  is  that  Congress  may, 
under  the  cover  or  pretense  of  a  tax  law,  accomphsh 
indirectly  an  object  which,  for  want  of  power,  it  could 
not  accomplish  directly,  although  the  accomplish- 
ment of  this  object  would  constitute  a  deliberate 
encroachment  upon  the  reserved  rights  of  the  states. 
There  is  great  danger  in  this  view,  and  it  opens 
the  door  to  abuse  by  Congress  of  the  power  of  taxa- 
tion. If  a  federal  statute  piu"ports  on  its  face  to  be 
a  tax  measure,  and  in  fact  to  some  extent  operates 
to  that  end,  the  courts  cannot  ordinarily  set  it  aside, 
even  though  the  motive  for  its  enactment  be  to 
accomplish  an  object  not  entrusted  to  the  national 
government.  The  jurisdiction  of  the  courts  is 
limited.  Legislation  which  seeks  to  effect  illegiti- 
mate ends  cannot  always  be  nullified.  The  power 
of  Congress  to  levy  a  graduated  inheritance  tax 
as  a  revenue  measure  would  be  practically  unlimited 
unless,  in  the  particular  instance,  the  law  were  so 
extravagant,  and  its  unconstitutional  object  so 
plain,  as  to  estabHsh  beyond  doubt  an  unauthor- 
ized purpose.  It  is  not  within  the  province  of 
the  judicial  power  to  determine  whether  a  given 
tax  which  raises  revenue  is  reasonable  or  un- 
reasonable, or  to  inquire  into  the  motives  of 
Congress  in  enacting  the  law.  The  courts  might 
not,  therefore,  be  able  to  set  aside  an  inheritance 
tax  law  passed  by  Congress  even  if  it  absorbed  fifty 
per  cent,  or  more  of  successions,  although  it  might 
be  quite  apparent  that  the  real  object  of  the  law 
was  to  invade  the  province  of  the  states  and  to 


GRADUATED  TAXATION  171 

regulate  inheritances  in  clear  violation  of  the  spirit 
of  the  Constitution. 

Nothing  could  be  better  calculated  ultimately  to 
undermine  our  whole  system  of  constitutional  govern- 
ment than  the  idea  that  the  courts  alone  are  the 
guardians  of  the  Constitution  and  that  Congress 
may  rightfully  enact  any  statute  which  the  courts 
cannot  properly  nullify.  The  truth  is  that  the  duty 
of  preserving  and  defending  the  Constitution  in  all 
its  integrity  is  vested  in  Congress  and  the  President 
far  more  than  in  the  courts,  and  that  if  Congress 
and  the  President  do  not  observe  the  restraints  and 
limitations  imposed  by  the  Constitution,  Congress 
may  pass  many  statutes  which  are  unconstitutional 
in  substance  but  which  the  courts  cannot  set  aside. 
It  is  often  urged  that  all  questions  of  constitutional- 
ity should  be  left  to  the  courts  and  not  be  passed  upon 
by  Congress  or  the  President.  The  true  doctrine, 
however,  is  that  Congress  should  not  enact  and  the 
President  should  not  approve  any  statute  which  they, 
as  the  agents  and  representatives  of  the  people,  are  not 
satisfied  seeks  to  accomplish  a  legitimate  end  within 
the  scope  of  some  power  delegated  to  Congress  and 
not  reserved  to  the  states  or  to  the  people.  They 
should  first  determine,  as  their  oath  of  office  requires, 
whether,  according  to  their  best  judgment,  the  act  is 
or  is  not  constitutional.  It  was  the  distinct  intention 
of  the  framers  of  the  Constitution,  and  they  so  pro- 
vided in  express  words,  that  every  member  of  Con- 
gress, every  senator  and  every  representative,  should 
be  bound  by  oath  or  affirmation  to  support  the  Con- 


172  GRADUATED    TAXATION 

stitution,  and  that  the  President,  especially,  should 
be  charged  with  the  duty  of  preserving,  protecting 
and  defending  it  to  the  best  of  his  ability.  This 
duty  extends  not  only  to  the  letter  but  to  the  spirit 
of  the  Constitution.  It  will  be  a  lamentable  exhibi- 
tion of  a  lack  of  what  may  well  be  termed  constitu- 
tional morality  if,  in  the  debates  on  the  pending 
measures,  we  shall  again  hear  the  suggestion  that 
objects  concededly  outside  the  scope  of  any  power 
delegated  to  the  national  government  may  never- 
theless be  accomplished  indirectly  by  means  of  a 
federal  inheritance  tax,  in  violation  of  the  reserved 
rights  of  the  state  governments. 

If,  in  framing  an  inheritance  tax  law,  Congress 
will  bear  in  mind  that  the  regulation  of  succes- 
sions to  the  property  of  decedents  is  a  matter 
solely  within  the  jurisdiction  of  the  states  and 
ought  not  to  be  usurped  by  the  federal  govern- 
ment, the  object  of  raising  revenue  alone  may  lead 
to  fair  and  reasonable  taxes  levied  impartially  upon 
all  who  should  be  called  upon  to  pay  for  the  sup- 
port and  maintenance  of  the  common  government 
whose  protection  they  enjoy.  It  would  then,  per- 
haps, be  better  appreciated  that  the  states  have 
important  and  extensive  governmental  functions  to 
perform;  that  they  need  inheritance  taxes  for  the 
support  of  their  governments,  schools,  charities, 
police  and  public  improvements,  and  that  any 
heavy  federal  succession  taxes  would  embarrass 
and  cripple  them.  It  is,  of  course,  one  thing  to 
resort  to  a  federal  inheritance  tax  as  a  temporary 


GRADUATED    TAXATION  173 

war  measure,  when  patriotism  inspires  ready  acquies- 
cence and  willing  sacrifice,  and  quite  a  different 
thing  to  estabhsh  such  a  tax  as  a  permanent  method 
of  raising  national  revenue  in  times  of  peace  and 
prosperity  when  the  effect  may  be  to  withdraw 
that  source  of  revenue  from  the  states. 

The  subject  of  federal  income  taxes  remains  to 
be  considered.  There  is  no  doubt  that  any  state 
may  levy  income  taxes.  Nor  is  there  any  doubt  that, 
under  the  federal  Constitution  as  it  now  stands. 
Congress  may  levy  an  income  tax  provided  it  be 
apportioned  according  to  population  as  required  in 
regard  to  all  direct  federal  taxes.  There  is  also  no 
doubt  that  Congress,  by  means  of  an  excise  tax,  may 
reach  income  derived  from  any  business  or  profes- 
sion, and  that  any  such  tax,  being  essentially  an  ex- 
cise tax  on  business,  need  not  be  apportioned  but 
need  merely  be  uniform  throughout  the  United  States. 
For  example,  a  tax  on  the  earnings  of  railroads  and 
manufacturing  businesses  could  be  levied  without 
apportionment,  and  it  would  produce  a  large  rev- 
enue. It  would  also  have  the  advantage  of  tapping 
income  at  the  source.  A  tax  by  Congress  on  lands 
and  personal  property  as  such  would,  no  one  dis- 
putes, be  a  direct  tax  and  subject  to  the  rule  of 
apportionment,  and  a  tax  on  the  income  of  property 
is  in  substance  and  practical  and  legal  effect  the 
equivalent  of  a  tax  on  the  property  itself. 

As  Chief  Justice  Fuller  said  in  the  Income  Tax 
cases:  "The  acceptance  of  the  rule  of  apportion- 
ment   was   one   of   the   compromises    which  made 


174  GRADUATED    TAXATION 

the  adoption  of  the  Constitution  possible,  and 
secured  the  creation  of  that  dual  form  of  govern- 
ment, so  elastic  and  so  strong,  which  has  thus 
far  survived  in  unabated  vigor.  If,  by  calling  a 
tax  indirect  when  it  is  essentially  direct,  the  rule 
of  protection  could  be  frittered  away,  one  of  the 
great  landmarks  defining  the  boundary  between 
the  nation  and  the  states  of  which  it  is  com- 
posed, would  have  disappeared,  and  with  it  one 
of  the  bulwarks  of  private  rights  and  private 
property."  ^ 

Nor  is  the  rule  of  apportionment  in  itself  unfair, 
even  under  the  conditions  existing  to-day.  If  a 
direct  income  tax  were  now  levied  and  duly  appor- 
tioned among  the  states  according  to  population  as 
required  by  the  Constitution,  the  smaller  states 
would  pay  comparatively  little  and  the  more  popu- 
lous and  richer  states  would  have  to  bear  what 
would  seem  to  be  their  full  share  of  national  taxation. 
New  York  would  then  have  to  pay  approximately 
ten  per  cent,  of  such  a  tax,  Pennsylvania  eight  per 
cent.,  Illinois  six  per  cent.,  Ohio  five  per  cent., 
whilst  Nevada  would  pay  only  one-twentieth  of  one 
per  cent,  and  Delaware  one-quarter  of  one  per  cent., 
although  these  two  states  have  a  representation 
in  the  Senate  equal  to  that  of  New  York  and  Penn- 
sylvania. Indeed,  ten  states  would  have  to  pay 
more  than  one-half  of  any  direct  tax,  leaving  the 
balance  to  be  divided  among  the  remaining  thirty-six 
states  according  to  their  population.     On  the  other 

^  167  United  States  Reports,  p.  583. 


GRADUATED    TAXATION  175 

hand,  if  a  graduated  income  tax  such  as  is  now  pro- 
posed were  levied  without  regard  to  apportionment, 
and  all  incomes  of  $4,ooo  and  under  were  exempted, 
the  effect  would  be  to  cast  more  than  ninety  per 
cent,  of  the  entire  tax  upon  the  inhabitants  of  less 
than  one-third  of  the  states. 

Nearly  twelve  years  have  passed  since  the  decision 
of  the  Income  Tax  cases,  and  there  has  been  ample 
time  to  amend  the  Constitution  if  the  people  had  so 
desired.  But,  instead  of  submitting  an  amendment 
such  as  was  introduced  in  the  House  of  Representa- 
tives last  week,  it  is  suggested  by  some  that  an 
attempt  should  be  made  to  disregard  or  circumvent 
the  Constitution  as  interpreted  by  the  Supreme 
Court  and  to  speculate  on  the  change  of  its  personnel 
and  the  chance  of  different  views  on  the  part  of  new 
incumbents.  Surely,  the  simpler  and  wiser  course 
would  be  to  ascertain  the  wishes  of  the  people  in  the 
manner  provided  by  the  Constitution.  Assuming, 
as  is  so  frequently  asserted,  that  the  people  generally 
want  a  federal  income  tax,  ratification  of  an  amend- 
ment can  be  readily  secured.  The  Congress,  by 
a  vote  of  two-thirds  of  both  houses,  can  at  once 
propose  the  necessary  amendment,  which  will  be- 
come effective  when  ratified  by  three-foiu-ths  of 
the  states.  The  ratification  can  probably  be  secured 
in  less  than  six  months  if  tliere  really  exists  any 
general  sentiment  in  favor  of  such  an  amendment, 
for  more  than  tliree-fourlhs  of  the  state  legisla- 
tures meet  this  winter.  If  deemed  necessary,  con- 
ventions   could    be    called    to  meet   within    a   few 


176  GRADUATED    TAXATION 

months.     In   any   event,   the   delay   ought  not  to 
exceed  fourteen  months. 

No  student  of  our  institutions  can  doubt  that 
amendments  to  the  Constitution  will  soon  be  thought 
necessary,  and  that  such  amendments  will  be  sub- 
mitted to  the  people.  Our  political  system  has  not 
ceased  to  grow.  Conditions  are  constantly  changing, 
and  powers  which  were  adequate  for  the  government 
of  a  federation  of  agricultural  states  may  become  in- 
sufficient for  the  necessities  of  the  national  govern- 
ment of  a  highly  commercial  and  manufacturing 
people,  with  world-wide  interests.  Mr.  Root's  elo- 
quent speech  last  night  before  the  Pennsylvania 
Society  has  shown  us  how  inevitably  and  irresistibly 
we  are  tending  toward  centralization.  But  it  is  mis- 
chievous and  dangerous  for  the  people  to  be  taught 
that  there  is  great  or  insurmountable  difficulty  in 
securing  amendments  to  the  Constitution  in  order  to 
supply  its  defects  or  to  meet  changed  conditions  and 
that  they  must  therefore  accomplish  their  wishes  by 
indirect  means  or  by  perverting  delegated  powers. 
The  future  contentment  of  the  American  people  re- 
quires that  they  shall  feel  that  they  may  readily,  and 
are  at  liberty  to,  amend  their  organic  law  according  to 
their  mature  judgment  whenever  they  deem  it  nec- 
essary to  do  so.  All  that  can  be  asked  is  that  they 
shall  act  deliberately  in  the  manner  provided  by  the 
Constitution  and  under  circumstances  calculated  to 
afford  time  and  opportunity  for  error  to  be  exposed, 
for  theorizing  and  clamor  and  prejudice  to  exhaust 
themselves  and  "for  the  sober  second  thought  of 


GRADUATED    TAXATION  177 

every  part  of  the  country  to  be  asserted."  If, 
then,  it  be  determined  to  give  to  the  national  govern- 
ment the  power  to  levy  income  taxes  without  appor- 
tionment, or  to  control  successions  to  the  estates  of 
decedents,  or  any  other  power,  the  will  of  the  sover- 
eign people  will  have  to  be  obeyed.  But  let  us 
hope  that  when  amendments  are  adopted  they  will 
be  conservative  and  wise,  that  the  reserved  powers 
of  the  states  will  not  be  heedlessly  curtailed  to  the 
embarrassment  of  the  states,  and  that  it  will  be  ap- 
preciated that  local  self-government  is  still  essential 
to  the  perpetuation  of  our  republican  and  federal 
institutions. 


THE  DUTY  OF  CITIZENSHIP  ^ 

AT  the  outset  of  our  deliberations,  Republican 
delegates,  it  may  be  interesting  to  recall  the 
circumstances  of  two  prior  national  campaigns  in 
which  political  symptoms  and  dissensions  were 
quite  analogous  to  those  existing  to-day.  When  the 
Repubhcan  state  convention  met  in  1880,  and  again 
in  1896,  the  outlook  for  the  success  of  the  Republican 
party  had  for  a  time  been  discouraging.  In  each 
of  these  campaigns  there  were  many  who  feared 
that  the  party  had  been  disrupted  and  that  its 
usefulness  might  be  coming  to  an  end.  In  each 
campaign  a  wave  of  false  doctrine,  sentimentality 
and  prejudice  threatened  to  drown  reason  amid 
the  prevailing  excitement,  clamor  and  declamation. 
But  in  each  courage  and  soberness  came  before 
November,  and  the  common  sense,  honesty,  sanity 
and  patriotism  of  the  American  people  supported 
the  sound  principles  and  policies  of  national  and 
constitutional  government  for  which  the  Republican 
party  stands. 

During  the  first  three  months  of  the  political 
campaign  of  1880,  it  seemed  as  though  the  Demo- 
cratic candidate  would  be  elected.  The  nomination 
of  General  Hancock  had  been  received  with  great 

^  Address  as  temporary  chairman  of  the  New  York  Republican  State 
Convention,  at  Saratoga  Springs,  September  25,  1912. 


DUTY    OF    CITIZENSHIP  179 

demonstrations  of  enthusiasm.  He  was  personally 
attractive  and  popular,  and  at  the  outset  little 
attention  was  paid  to  the  fact  that  the  platform  of 
his  party  was  radical  and  had  declared  in  favor  of 
"  a  tariff  for  revenue  only  "  with  the  consequent  aban- 
donment of  the  protective  system.  The  Republicans 
were  not  united;  in  some  states  they  were  hope- 
lessly divided.  The  defection  was  certain  to  be  large. 
In  many  Republican  states  the  Greenback  party, 
with  its  financial  and  social  heresies,  had  increased 
enormously  in  strength,  and  it  had  nominated  a  na- 
tional ticket.  Maine  had  been  carried  in  September 
by  a  combination  of  Greenbackers  and  Democrats. 
In  November  the  Republican  party  was  to  lose  New 
Jersey,  California  and  Nevada,  and,  for  the  first 
time  since  the  Civil  War,  it  would  fail  to  receive  any 
electoral  votes  from  the  states  south  of  Mason  and 
Dixon's  line.  Yet  Garfield  was  elected  by  2i4 
electoral  votes  against  i55  for  Hancock.  New 
York,  which  had  gone  Democratic  in  1876  with  a 
plurality  of  82,700,  went  Republican  in  1880  with  a 
plurality  of  21,000.  Thus  we  see  that,  although 
there  was  then  schism  and  dissension  in  the  Repub- 
lican ranks,  and  although  the  party  lost  Maine  in 
September  and  New  Jersey,  California  and  Nevada 
in  November,  as  well  as  every  southern  state,  its 
candidates  nevertheless  were  elected. 

A  consideration  of  the  circumstances  of  the  cam- 
paign of  1896  will  prove  even  more  instructive  and 
encouraging.  The  Republican  party  was  then 
divided   and   tlireatened   with   ruin   by  defections. 


180  DUTY    OF    CITIZENSHIP 

The  leaders  in  the  national  convention  at  St.  Louis 
had  courageously  refused  to  bend  to  the  demands  and 
tlireats  of  a  numerous  minority,  who  were  urging  a 
radical  platform  and  a  radical  candidate.  A  large 
number  of  Republicans  had  bolted,  and  they  were 
loudly  proclaiming  that  they  alone  represented  the 
true  and  overwhelming  sentiment  of  the  party.  Ac- 
cording to  them  all  else  was  fraudulent,  and  all  who 
did  not  agree  with  them  were  accused  of  having  been 
corrupted  by  the  moneyed  interests.  It  was  evident 
that  this  faction  had  set  out  to  rule  or  ruin  their 
party,  and,  having  failed  to  coerce  it,  were  deter- 
mined to  overthrow  it.  They  organized  a  new  party, 
which  they  called  the  National  Silver  party;  they 
assembled  in  convention  at  St.  Louis  amid  excite- 
ment and  posing  and  virtuous  homilies  about 
reformation  and  social  uplift  quite  similar  to  those 
which  we  have  heard  during  the  past  summer; 
they  prophesied  the  death  of  the  Republican  party 
for  its  alleged  betrayal  of  the  people,  and  they 
proceeded  to  endorse  the  candidacy  and  views  of 
Mr.  Bryan.  The  Populist  party,  likewise  largely 
composed  of  dissatisfied  and  discontented  Republi- 
cans, held  its  national  convention  at  St.  Louis,  went 
through  similar  political  performances  and  emotional 
displays,  and  endorsed  the  Democratic  candidate. 

It  would  be  difficult  to  exaggerate  the  enthusiasm 
in  1896  for  Mr.  Bryan.  I  comment  upon  it  now  in 
order  that  comparisons  may  be  made  and  the  lesson 
appreciated.  Wherever  he  moved,  immense  and 
excited    throngs    pressed    about    him    and    wildly 


DUTY    OF    CITIZENSHIP  181 

cheered  his  utterances.  Much  of  the  character  of 
the  present  campaign  was  then  in  evidence.  Bryan 
preached  a  social  reformation  and  a  crusade  against 
estabhshed  institutions,  constitutional  government 
and  the  supremacy  of  the  law.  He  played  upon 
envy,  discontent  and  cupidity.  He  attracted  to  his 
standard  the  remnants  of  Coxey's  "army,"  whicli 
two  years  before  had  marclied  to  Washington,  call- 
ing itself  the  "Army  of  the  Commonweal  of  Christ." 
In  our  country  such  movements  frequently  mask 
in  the  robes  of  religion.  Bryan  denounced  the 
President  then  in  office.  He  assailed  our  judicial 
system,  including  the  Supreme  Court  of  the  United 
States.  He  posed  as  a  knight-errant  and  crusader 
who  sought  to  uplift  the  poor  and  redress  the  wrongs 
of  the  nation.  He  repeated  all  the  exploded  clap- 
trap of  demagogues.  And  his  eloquence,  together 
with  his  apparent  sincerity,  made  him  a  most  dan- 
gerous candidate,  far  more  dangerous  than  are  our 
opponents  of  to-day. 

The  combination  of  Democrats  and  former  Re- 
publicans in  1896  was  more  formidable  than  if 
their  vote  had  been  divided  and  the  discontented 
Republicans,  Populists  and  Silverites  had  nominated 
a  separate  ticket.  It  would  have  been  easier  to 
defeat  a  divided  enemy.  Plurality  and  not  majority 
in  each  state  determines  the  choice  of  presidential 
electors,  although  a  majority  of  the  electors  is 
necessary  to  elect  a  President.  The  situation  was 
very  critical  because  the  times  were  hard,  many 
good    reasons    for    discontent    existed,    thousands 


182  DUTY    OF    CITIZENSHIP 

of  workmen  in  every  state  were  unemployed,  and 
agitators  and  demagogues  found  ready  response  to 
their  appeals  in  the  hearts  of  men  who  were  suffering 
from  hunger. 

Yet,  even  under  such  conditions,  the  defense  of 
constitutional  government  and  established  institu- 
tions was  safe  in  the  hands  of  the  thoughtful,  sober 
and  patriotic  people  of  the  country.  A  complete 
revulsion  of  public  feeling  took  place  before  Novem- 
ber. The  Democratic  party,  which  four  years 
before  had  carried  the  nation  with  a  plurality  of 
38i,ooo  and  the  state  of  New  York  with  a  plu- 
rality of  45,5oo,  was  defeated  by  the  Republican 
candidate  with  a  plurality  of  nearly  6o/i,ooo  in  the 
nation  and  over  268,000  in  the  state.  McKinley 
received  271  electoral  votes  against  176  for  Bryan. 
That  great  success  was  secured  in  the  face  of  the 
fact  that  ten  western  states  which  are  normally 
Republican  went  Democratic ;  in  other  words,  the 
Republican  candidates  were  triumphantly  elected  in 
1896  although  Colorado,  Kansas,  Idaho,  Montana, 
Nebraska,  Nevada,  South  Dakota,  Utah,  Washing- 
ton and  Wyoming  all  cast  their  electoral  votes  for 
Mr.  Bryan. 

The  task  of  the  Republican  party  in  these  prior 
campaigns  was  to  bring  home  to  the  people  the  vital 
importance  to  them  of  the  issues  of  those  campaigns. 
Similarly  our  task  in  this  campaign  is  to  convince 
the  voters  of  the  country  that  they  are  again 
called  upon  to  preserve  the  industrial  system  upon 
which  the  wages,  income  and  property  of  milhons 


DUTY    OF    CITIZENSHIP  183 

of  American  citizens  arc  based,  as  well  as  to  defend 
the  constitutional  representative  government  under 
which  for  more  than  a  century  we  have  maintained 
political,  religious  and  individual  liberty  and  have 
prospered  beyond  all  nations. 

At  the  beginning  of  this  campaign  and  until 
recently  many  Republicans  were  disheartened. 
The  menace  to  our  institutions  and  future  in  the 
possible  success  of  the  Progressive  party  and  the 
re-election  of  ex-President  Roosevelt  seemed  as 
portentous  as  was  the  menace  of  Rryanism  in  1896, 
in  I  goo  and  in  1908.  To  some,  therefore,  it  seemed 
at  first  as  if  it  might  be  their  patriotic  duty  to  vote 
the  Democratic  ticket.  Patriotism  is  ever  more 
than  party.  Rut  these  Republicans  now  realize 
the  folly  of  that  course  and  the  certainty  that  the 
Republican  party  will  maintain  its  solidarity.  We 
see  clearly  that  the  candidacy  of  Mr.  Roosevelt  is 
doomed  to  defeat,  and  that  only  a  desire  to  work 
injury  to  the  Republican  party  continues  the  cam- 
paign of  the  so-called  Progressives. 

I  have  examined  the  published  record  as  to  con- 
tested seats  in  the  national  convention  of  the 
Republican  party  at  Chicago,  and  I  have  endeav- 
ored to  ascertain  all  of  the  facts.  I  believe  that 
I  have  done  so.  In  my  judgment  no  fair-minded 
person  who  will  take  the  trouble  to  read  the  evidence, 
who  will  look  impartially  at  the  facts  and  candidly 
seek  to  discover  the  truth,  can  doubt  the  fairness 
of  the  procedure  or  the  correctness  of  the  decisions. 
Most  of  the  contests  were  wholly  unjustifiable,  if 


184  DUTY    OF    CITIZENSHIP 

not  fraudulent,  and  had  to  be  abandoned.  Indeed, 
it  was  shamelessly  boasted  by  a  well-known  news- 
paper that  the  great  majority  of  the  contests  had 
been  gotten  up  in  order  to  create  a  psychological 
effect,  which,  I  take  it,  among  plain  people  would 
mean  the  deliberate  creation  of  a  false  impression. 
I  will  read  you  the  language  of  one  of  the  exemplars 
of  the  class  of  reformers  who  are  too  virtuous  to  re- 
main in  the  Republican  party  and  who  profess  to 
teach  the  people  of  this  country  political  morality. 
The  "Washington  Times"  contains  the  following  in 
its  issue  of  June  9,  191 2:  "For  psychological  effect 
as  a  move  in  practical  politics  it  was  necessary  for  the 
Roosevelt  people  to  start  contests  on  these  early 
Taft  selections  in  order  that  a  tabulation  of  delegate 
strength  could  be  put  out  that  would  show  Roose- 
velt holding  a  good  hand.  In  the  game  a  table 
showing  Taft  i5o,  Roosevelt  19,  contested  i,  would 
not  be  very  much  calculated  to  inspire  confidence, 
whereas,  one  showing  Taft  28,  Roosevelt  19,  con- 
tested 127,  looked  very  different.  That  is  the  whole 
story  of  the  large  number  of  southern  contests 
that  were  started  early  in  the  game.  It  was  never 
expected  that  they  would  be  taken  very  seriously. 
They  served  a  useful  purpose,  and  now  the  national 
committee  is  deciding  them  in  favor  of  Taft  in  most 
cases  without  real  division." 

Of  the  288  contests  finally  filed  on  behalf  of 
ex-President  Roosevelt,  i64  were  abandoned.  The 
contests  which  were  not  abandoned  were  decided 
on  their  merits.     After  studying  the  facts,  I  am  con- 


DUTY    OF    CITIZENSHIP  185 

vinced  that  the  Taft  delegates  were  legally  and 
morally  entitled  to  their  scats.  Unfortunately,  the 
record  is  voluminous,  and  few  will  take  the  time  or 
trouble  to  read  the  evidence.  The  cry  of  fraud  is 
misleading  many.  But  surely  when  such  men  as 
Senator  Root  and  the  presidents  of  Columbia  and 
Cornell  universities  declare  their  conviction  of 
the  integrity  of  the  procedure  and  of  the  deci- 
sions, we  may  well  rest  satisfied.  In  his  speech 
notifying  President  Taft  of  his  renomination, 
Senator  Root  said  that  neither  in  the  facts  nor 
in  the  arguments  produced  before  the  national 
committee,  the  committee  on  credentials,  the  con- 
vention itself,  or  otherwise,  did  there  appear  to 
be  any  just  ground  for  impeaching  the  honesty 
and  good  faith  of  the  decisions  of  the  national  com- 
mittee. He  further  declared  to  President  Taft  that 
his  title  to  the  nomination  was  "as  clear  and  unim- 
peachable as  the  title  of  any  candidate  of  any  party 
since  political  conventions  began."  Senator  Root's 
high  character,  his  great  services  to  the  nation  and 
to  the  party,  and  his  lofty  sense  of  personal  honor 
and  responsibility,  entitle  him  to  have  his  word  and 
his  opinion  under  such  circumstances  unqualifiedly 
accepted  by  the  people  of  the  state  of  New  York. 

The  preference  of  the  majority  of  the  national 
convention  being  clearly  for  President  Taft,  should 
this  majority  nevertheless  have  cast  him  aside  and 
nominated  Mr.  Roosevelt  because  of  threats  of  dis- 
ruption of  the  party  similar  to  those  of  1896,  or 
because  in  a  few  states  ex-President  Roosevelt  had 


186  DUTY    OF    CITIZENSHIP 

secured  a  larger  primary  vote  than  President  Taft 
in  hasty  contests  in  which  misrepresentation  un- 
doubtedly had  led  many  astray?  What  course  did 
patriotism  dictate  to  the  majority  of  the  delegates? 
Ought  they  to  have  surrendered,  and,  because  of 
clamor  and  threats  of  disruption  of  the  party,  put 
aside  their  own  preferences  and  instructions  for 
President  Taft  and  nominated  Mr.  Roosevelt? 
There  were  reasons  why  this  course  would  have 
been  an  act  of  folly  as  well  as  of  injustice. 

In  the  first  place,  the  nomination  of  an  ex-Presi- 
dent of  the  United  States  for  a  third  term  would  have 
been  in  violation  of  an  unwritten  rule  established 
by  Washington,  Jefferson,  Madison  and  Monroe,  and 
followed  ever  since.  The  Republican  party  which, 
as  a  matter  of  sound  principle  and  political  ethics, 
had  refused  in  1880  to  nominate  ex-President  Grant 
for  a  third  term,  notwithstanding  his  transcendent 
claims  to  the  gratitude  of  the  nation,  could  not 
stultify  itself  in  19 12  by  nominating  ex-President 
Roosevelt  for  a  third  term. 

The  wisdom  of  maintaining  this  unwritten  rule 
should  be  evident.  The  common  sense  of  thought- 
ful, candid  and  patriotic  men  must  convince  them 
that  nothing  could  be  more  dangerous  than  to  per- 
mit any  individual,  however  popular  or  eloquent, 
to  wield  the  power  of  the  presidential  office  for 
more  than  two  terms.  The  New  York  convention  of 
1788,  which  ratified  the  Constitution  of  the  United 
States,  proposed  an  amendment  to  the  effect  "that 
no  person  shall  be  eligible  to  the  office  of  President 


DUTY    OF    CITIZENSHIP  187 

of  the  United  States  a  third  time,"  and  this  un- 
doubtedly has  ever  since  been  the  sentiment  of  the 
people  of  this  state,  although  it  was  defied  in  1880 
when  an  attempt  was  made  to  force  the  nomination 
of  ex-President  Grant  for  a  third  term,  notwith- 
standing the  fact  that  only  five  years  before  the 
Republican  state  convention  had  declared  in  its 
platform  "our  unalterable  opposition  to  the  election 
of  any  president  for  a  third  term." 

There  is  not  time  to  discuss  the  genesis  or  wisdom 
of  this  unwritten  rule  of  political  policy,  which  had 
never  been  violated  by  any  political  party  until  the 
nomination  of  ex-President  Roosevelt  by  the  Pro- 
gressives. It  is  now  pretended  that  there  never 
was  any  such  rule  or  principle  of  political  policy 
and  that  Washington  and  Jefferson  were  governed 
solely  by  considerations  of  their  own  personal  con- 
venience. Three  quotations  from  Jefferson's  writ- 
ings ought  to  be  sufficient  to  explode  this  pretense. 
I  take  Jefferson  because  he  is  now  one  of  the  patron 
saints  of  the  Progressive  as  well  as  of  the  Democratic 
party. 

In  January,  i8o5,  shortly  after  his  re-election, 
Jefferson  declared  as  follows:  "General  Washington 
set  the  example  of  voluntary  retirement  after  eight 
years.  I  shall  follow  it.  And  a  few  more  prece- 
dents will  oppose  the  obstacle  of  habit  to  any  one 
after  awhile  who  shall  endeavor  to  extend  his  term. 
Perhaps  it  may  beget  a  disposition  to  establish  it 
by  an  amendment  of  the  Constitution.  I  believe 
I  am  doing  right,  therefore,  in  pursuing  my  prin- 


188  DUTY    OF    CITIZENSHIP 

ciple."  Again  in  1807  he  wrote  to  the  legislature 
of  Vermont:  "I  should  unwiUingly  be  the  person 
who,  disregarding  the  sound  precedent  set  by  an 
illustrious  predecessor,  should  furnish  the  first 
example  of  prolongation  beyond  the  second  term  of 
office."  And  fourteen  years  afterwards,  in  1821,  he 
published  his  "Autobiography,"  in  which  he  said: 
"The  example  of  four  Presidents  voluntarily  retir- 
ing at  the  end  of  their  eighth  year,  and  the  progress 
of  public  opinion  that  the  principle  is  salutary, 
have  given  it  in  practice  the  force  of  precedent  and 
usage;  insomuch,  that,  should  a  President  consent 
to  be  a  candidate  for  a  third  election,  I  trust  he 
would  be  rejected  on  this  demonstration  of  ambi- 
tious views." 

But  aside  from  all  principle  and  precedent,  the 
promises  dehberately  made  by  ex-President  Roose- 
velt to  the  people  of  the  United  States  rendered  his 
candidacy  impossible  without  what  seems  to  many 
a  breach  of  faith.    The  facts  speak  for  themselves. 

On  the  8th  of  November,  190/i,  President  Roose- 
velt expressed  to  the  people  of  the  United  States 
gratitude  for  his  election,  and  appealed  to  them  for 
their  support  and  confidence  during  his  second  term, 
undoubtedly  having  in  mind  President  McKin- 
ley's  example  in  1901,  when  he  had  declared  that 
he  would  not  accept  a  nomination  for  a  third 
term  if  it  were  tendered  him,  and  had  pointed  out 
that  there  were  "questions  of  the  greatest  impor- 
tance before  the  administration  and  the  country, 
and  their  just  consideration  should  not  be  prejudiced 


DUTY    OF    CITIZENSHIP  189 

in  the  public  mind  by  even  the  suspicion  of  the 
thougliL  of  a  third  term."  Presiderit  Roosevelt's 
language  in  1904  was  as  follows:  "On  the  4th  of 
March  next  I  shall  have  served  three  and  one-half 
years,  and  this  three  and  one-half  years  constitutes 
my  first  term.  The  wise  custom  which  limits  the 
President  to  two  terms  regards  the  substance  and 
not  the  form.  Under  no  circumstances  will  I  be  a 
candidate  for  or  accept  another  nomination."  In 
December,  1907,  he  reiterated  this  declaration,  and 
added  the  following  words:  "I  have  not  changed 
and  shall  not  change  the  decision  thus  announced." 
Yet  on  February  24,  191 2,  he  gave  to  the  press  a 
letter  in  which  he  said :  "  I  will  accept  the  nomination 
for  President  if  it  is  tendered  to  me,  and  I  will  adhere 
to  this  decision  until  the  convention  has  expressed 
its  preference." 

The  statesman  who  had  thus  pledged  his  word 
could  not  break  his  promise  to  the  people  without 
sacrificing  the  good  opinion  of  many  citizens.  And 
if  the  Republican  national  convention  had  joined 
ex-President  Roosevelt  in  a  repudiation  of  these 
solemn  promises,  it  would  have  alienated  a  large 
body  of  voters  who  still  hold  in  reverence  the 
names  and  examples  of  Washington,  Jefferson, 
Madison  and  Monroe,  and  who  still  beheve  in 
political  consistency  and  morality,  and  it  would 
have  put  the  party  on  the  defensive  throughout  the 
campaign  upon  an  issue  of  plain  and  simple  morals. 
The  Re[)ublican  party,  moreover,  could  not  afford  — 
in  fact  it  would  have  been  hopeless  —  to  ask  for 


190  DUTY    OF    CITIZENSHIP 

the  continued  support  of  the  country  on  any  such 
terms. 

Another  reason  why  the  majority  in  the  Chicago 
convention  should  not  have  cast  aside  President 
Taft  and  nominated  ex-President  Roosevelt  was 
because  to  have  done  so  would  have  been  an  act 
of  political  treachery,  ingratitude  and  dishonor. 
President  Taft  had  earned  and  deserved  renomina- 
tion  for  great  and  faithful  service  to  the  nation  and 
to  the  party.  The  custom  generally  followed  had 
been  to  renominate  a  President  who  had  served 
well  and  capably.  The  Republicans  of  New  York 
had  unanimously  proclaimed  in  their  platform  of 
1 910,  when  ex-President  Roosevelt  himself  con- 
trolled the  state  convention  and  dictated  its  policy: 
"  We  enthusiastically  indorse  the  progressive  and 
statesmanlike  leadership  of  William  Howard  Taft, 
and  declare  our  pride  in  the  achievements  of  his 
first  eighteen  months  as  President  of  the  United 
States.  Each  succeeding  month  since  his  inaugura- 
tion has  confirmed  the  nation  in  its  high  esteem  of 
his  greatness  of  character,  intellectual  ability,  sturdy 
common  sense,  extraordinary  patience  and  persever- 
ance, broad  and  statesmanlike  comprehension  of 
public  questions  and  unfaltering  and  unswerving 
adherence  to  duty."  And  nothing  had  occurred 
during  the  months  intervening  between  this  state 
convention  and  the  national  convention  to  shake 
that  high  and  just  estimate  of  the  character  and 
ability  of  President  Taft.  He  had  consented  to  run 
when  he  believed  he  could  rely  on  the  loyalty  of 


DUTY    OF    CITIZENSHIP  191 

Mr.  Roosevelt  as  his  friend,  and  subsequent  with- 
drawal would  have  been  a  personal  humihation. 

In  practical  acliievements,  President  Taft's  ad- 
ministration had  been  notably  successful  and  efficient, 
although  not  spectacular.  It  may  be  asserted  with 
confidence  that  the  laws  enacted  by  Congress  never 
had  been  administered  more  effectively,  honestly 
and  impartially  than  under  President  Taft.  Without 
turmoil  or  agitation,  and  without  threatening  Con- 
gress, he  had  accomphshcd  more  in  three  and  one- 
third  years  than  his  immediate  predecessor  in  seven 
and  one-half  years.  He  had  shown  a  consistent 
policy  of  real  progressiveness  and  constructive  states- 
manship. In  every  branch  of  government  he  had 
confirmed  President  Roosevelt's  panegyric  of  1908, 
when  he  urged  the  American  people  to  elect  Mr. 
Taft  because  of  his  pre-eminent  quahfications  for 
the  office  of  President  of  the  United  States. 

It  may  be  true  that  after  eighteen  years  of  unselfish 
devotion  and  conspicuously  efficient  and  faithful 
service  to  the  American  public,  as  solicitor  general, 
United  States  circuit  judge,  governor  of  the 
Phihppines,  secretary  of  war  and  President  of  the 
United  States,  Mr.  Taft  had  failed  to  secure  popu- 
larity with  the  thoughtless,  the  discontented  and 
the  revolutionary,  and  with  that  part  of  the  press 
that  lives  on  sensationalism  and  muck-raking.  But 
such  popularity  should  hardly  be  the  test  of  qualifica- 
tion for  the  great  office  of  President  of  the  United 
States.  We  know  that  Lincoln  was  so  unpopular 
with   the  unthinking  and   impatient   in    i86/t    that 


192  DUTY    OF    CITIZENSHIP 

he  despaired  of  re-election  and  that  he  expected 
defeat  at  the  polls  unless  the  army  could  save  the 
day  and  change  public  opinion  by  some  striking 
successes. 

Popularity  with  the  unreasoning  and  discontented 
was  easily  within  the  reach  of  President  Taft  had 
he  sought  it.  In  view  of  the  prestige  of  his  high 
office  and  the  reverence  it  commands,  he  had  only 
to  practice  the  well-known  arts  of  the  demagogue 
by  which  crowds  are  stirred  and  led  astray  —  as 
well  known  to  him  as  to  all  who  read  history.  He 
had  only  to  issue  from  time  to  time  high-sounding 
declarations  about  his  staunch  patriotism,  his  own 
virtue,  his  uncompromising  veracity,  his  self-sac- 
rificing loyalty  to  duty,  the  infallibility  of  his  judg- 
ment, the  purity  of  his  motives,  and  the  corruption 
and  mendacity  of  his  adversaries.  He  had  only 
to  rail  at  corporations,  at  the  builders  of  the  in- 
dustries of  the  country  and  at  bankers  and  capital- 
ists, in  order  to  secure  the  applause  of  envy  and 
discontent.  He  had  only  to  inveigh  against  preda- 
tory wealth  to  become  at  once  the  idol  of  predatory 
poverty.  But  his  self-respect  would  not  allow  him 
to  stoop  so  low  and  to  pander  to  what  is  weakest, 
if  not  basest,  in  human  nature,  and  his  sense  of 
duty  would  not  permit  him  thus  to  degrade  the  great 
office  of  President  of  the  United  States. 

The  ingratitude  of  republics  is  proverbial;  yet 
surely  it  would  have  been  an  unparalleled  act  of 
ingratitude  for  President  Taft's  own  party  to  refuse 
him  the  renomination  he  had  earned  and  deserved. 


DUTY    OF    CITIZENSHIP  193 

The  lesson  that  the  repudiation  of  President  Taft 
by  his  own  party  would  have  taught  the  country 
and  future  generations  would  have  been  demoraliz- 
ing. It  would  have  constituted  a  warning  to  all 
our  present  and  future  public  officers  that  with  us 
Americans  conspicuously  efficient  and  faithful  public 
service  goes  for  naught,  and  that  Republican  public 
officers,  from  the  President  of  the  United  States 
down  to  the  lowest,  must  not  expect  to  be  judged 
by  their  acts,  ability  and  character,  but  as  they 
have  succeeded  in  cultivating  the  applause  of  the 
unthinking. 

The  great  issues  before  the  people  in  the  present 
critical  campaign,  however,  are  far  more  important 
than  the  personal  qualifications,  claims,  or  merits 
of  the  candidates.  These  issues  are:  (i)  the  con- 
stitutional right  and  power  of  Congress  to  protect 
American  industries  and  to  preserve  our  present 
industrial  system;  (;:>)  the  threatened  overthrow  of 
the  representative  system  of  government  in  state  and 
nation  by  the  introduction  of  the  initiative,  the 
referendum  and  the  recall,  and  (3)  the  assault  upon 
the  administration  of  justice  in  American  courts. 

Upon  the  tariff  question,  there  is  an  irreconcilable 
difference  between  the  principles  of  the  Republican 
party  and  those  of  the  Democratic  party.  The  one 
insists  that  it  is  the  legitimate  duty  and  function  of 
Congress  in  levying  taxes  to  protect  American 
industries  and  wages,  whilst  the  other  insists  that 
Congress  has  neither  the  right  nor  the  power  under 
the  federal  Constitution  to  do  so.     I  shall  assume 


194  DUTY    OF    CITIZENSHIP 

that  political  platforms,  although  they  may  not  be 
binding  programmes,  certainly  are  intended  to  em- 
body a  declaration  of  the  political  faith  and  prin- 
ciples in  which  the  respective  candidates  believe  and 
which  they  intend  to  represent.  If  this  be  not  so, 
then  why  are  platforms  adopted? 

The  platform  of  the  Republican  pai'ty  unqualifiedly 
pledges  the  party  and  its  candidates  to  a  protective 
tariff  with  duties  so  adjusted  as  adequately  to 
protect  American  industries  and  wages.  It  concedes 
that  readjustments  must  be  made  and  that  excessive 
rates  should  be  reduced,  but  it  insists  that,  in  order 
to  do  so  intelligently  and  fairly,  correct  information 
is  indispensable.  It  favors  securing  this  information 
by  an  expert  commission  and  a  non-partisan  tariff 
board.  It  seeks  the  withdrawal  of  the  tariff  from 
politics  in  order  that  each  industry  may  be  dealt 
with  on  its  merits  by  non-partisan  commissions. 
It  indicts  the  Democratic  party  for  its  refusal  to 
provide  funds  for  the  continuance  of  such  a  tariff 
board  and  for  the  reckless  and  sectional  tariff  bills 
passed  by  the  Democratic  House  of  Representatives 
which  wholly  disregard  the  protection  of  American 
interests. 

Senator  Root  declared  at  the  national  convention 
that  the  Democratic  party  did  not  want  to  ascertain 
the  facts  upon  which  a  just  protective  measure 
could  be  framed,  but  intended  that  there  should  be 
no  protection  for  American  industries,  and  he 
further  declared  that  the  Democratic  House  of  Rep- 
resentatives   had   framed    and   passed    a  series    of 


DUTY    OF    CITIZENSHIP  195 

tariff  bills  for  revenue  only  with  complete  indiffer- 
ence to  the  absolute  destruction  that  their  enact- 
ment would  bring  upon  great  American  industries. 
He  asserted  that  "the  American  people  have  now 
to  pass,  not  upon  the  abuses  of  the  tariff,  but  on 
the  fundamental  question  between  the  two  systems 
of  tariff-making." 

This  challenge  the  Democratic  party  met  and 
answered  in  the  first  and  cardinal  plank  adopted 
by  its  national  convention  at  Baltimore,  which 
pledged  the  party  and  its  candidates  to  the  ultimate 
attainment  of  the  principles  of  free  trade,  because 
of  the  absence  of  pow  er  in  the  Congress  of  the  United 
States  to  protect  American  labor  and  American 
industries.  The  plank  reads  as  follows:  "We  de- 
clare it  to  be  a  fundamental  principle  of  the  Demo- 
cratic party  that  the  federal  government,  under 
the  Constitution,  has  no  right  or  power  to  impose 
or  collect  tariff  duties  except  for  the  purpose  of 
revenue."  And  there  can  be  no  doubt  that  this 
declaration  was  assumed  not  only  to  represent  the 
present  free-trade  policy  of  the  Democratic  party 
but  to  be  in  full  accord  with  Governor  Wilson's 
personal  views  as  an  out-and-out  free  trader. 

The  people  of  the  United  States  are,  therefore, 
now  asked  by  the  Democratic  party  to  vote  in 
favor  of  the  proposition  that,  no  matter  what  foreign 
competition  there  may  be,  even  from  Asiatics,  the 
American  national  government  has  neither  the  right 
nor  the  power  to  protect  a  single  industry  or  a  sin- 
gle workman.     Such  a  proposition  may  well  amaze 


196  DUTY    OF    CITIZENSHIP 

and  delight  foreign  countries,  and  no  wonder  they 
all  desire  the  success  of  the  Democratic  party. 
Every  other  national  government  not  only  has  the 
power  to  protect  its  industries,  but  has  again  and 
again  exercised  that  power  whenever  the  interests 
of  its  people  demanded  protection.  The  power  in 
one  form  or  another  is  being  exercised  to-day  against 
American  products  by  almost  every  government  in 
the  world,  including  the  colonies  of  England,  as 
witness  Canada.  The  power  would  be  exercised  by 
England  again  to-morrow  if  it  should  appear  to  be 
for  her  interest  to  do  so.  Yet,  no  matter  that  our 
factories  may  be  closed  and  our  wage-earners  thrown 
out  of  work  as  in  189/1,  i^O^  ^^^  1896,  no  matter 
how  easily  Europe  and  Asia  could  make  our  country 
their  dumping-ground  and  could  make  a  prey  of  our 
necessities  after  closing  our  workshops  and  destroying 
our  industries,  no  matter  how  beneficial  to  all  classes 
it  may  be  to  have  a  diversity  of  industries  —  the 
Democratic  party,  nevertheless,  proclaims  that  our 
national  government  is  powerless,  and  that  there 
is  neither  the  right  nor  the  power  to  enact  a  tariff 
except  for  revenue. 

We  Republicans  firmly  believe  that  if  there  be  one 
feature  or  element  of  right  and  power  within  the 
spirit  and  scope  of  the  Constitution  of  the  United 
States,  and  clearly  vested  in  Congress,  it  is  the 
right  and  power  to  impose  duties  for  the  purpose 
of  protecting  American  industries  and  American 
labor.  The  very  first  tariff  act,  approved  July  4, 
1789,    one   hundred    and    twenty- tliree   years   ago, 


DUTY    OF    CITIZENSHIP  197 

declared  that  one  of  its  purposes,  one  of  its  objects, 
one  of  its  inducing  motives,  was  "the  encouragement 
and  protection  of  manufactures."  Washington  ap- 
proved and  signed  that  bilL  Presidents  Washington, 
Jefferson,  Madison  and  Monroe  —  all  of  them  of 
the  generation  that  framed  the  federal  Constitution 
—  recognized  the  existence  of  the  power  to  protect 
and  recommended  the  protection  of  American 
industries.  But  the  American  people  are  now 
asked  in  igi?.  to  vote  for  a  party  and  a  platform 
which  repudiate  both  the  right  and  the  power  of 
Congress  to  protect  American  workmen,  farmers 
and  manufacturers. 

It  is  impossible  in  this  outline  of  issues  adequately 
to  discuss  the  principles  and  policy  of  a  protective 
tariff.  The  details  of  that  important  and  vital 
subject  must  be  taken  up  and  analyzed  at  other 
times.  Generalizations  would  be  of  little  value. 
The  facts  are  readily  at  hand,  and  they  demonstrate 
that  the  material  welfare  of  the  country  and  of 
nearly  every  class  and  section  has  been  promoted  by 
the  protective  policy,  and  it  will  continue  to  be  so 
promoted.  Although  we  may  now  be  willing  to  face 
free  competition  with  Europeans,  we  cannot  be 
blind  to  the  menace  and  danger  of  free  competition 
with  Asiatics.  Just  across  the  Pacific  ocean,  with 
constantly  cheapening  freiglit  and  passenger  rates, 
are  populations  of  5o,ooo,ooo  in  Japan,  45o,ooo,ooo 
in  China,  3oo,ooo,ooo  in  India  —  800,000,000  —  who 
will  furnish  efficient  labor  at  wages  ranging  from 
10  to  3o  cents   a   day  for  twelve   hours'  work  on 


198  DUTY    OF    CITIZENSHIP 

the  same  kind  of  machines  at  which  American  men 
and  women  are  now  working.  Shall  we  open  the 
flood-gates?  Shall  we  elect  as  President  the  his- 
torian who,  but  a  few  years  ago  in  the  quiet  and 
impartial  atmosphere  of  his  study,  declared  to  the 
world  his  sympathy  for  needy  Asiatics  and  his 
opinion  that  "the  Chinese  were  more  to  be  desired, 
as  workmen  if  not  as  citizens,  than  most  of  the 
coarse  crew  that  came  crowding  in  every  year  at 
the  eastern  ports"? 

This  generation  has  had  one  bitter  experience  of 
Democratic  tariff  legislation.  In  1892,  the  Demo- 
cratic party  was,  for  the  first  time  in  thirty-two 
years,  placed  in  control  of  both  houses  of  Congress 
and  the  presidency.  It  came  into  office  committed 
to  free  trade,  as  it  would  now  again  come  into  office 
pledged  to  free  trade.  It  passed  the  Wilson  bill 
in  August,  189/i,  and  thereby  took  its  first  step 
towards  the  abandonment  of  the  policy  of  protec- 
tion for  American  industries.  There  followed,  prin- 
cipally as  the  direct  result  of  this  Democratic  tariff 
legislation  and  the  antecedent  menace,  an  acute 
period  of  industrial  and  financial  depression.  I 
had  supposed  that  the  fateful  years  189^,  1896  and 
1896  would  never  be  forgotten  by  those  who  suffered 
through  them.  As  Governor  Wilson  himself  well  said 
in  his  "History  of  the  American  People,"  in  describing 
this  period  of  misery:  "Men  of  the  poorer  sort  were 
idle  everywhere,  and  filled  with  a  sort  of  despair. 
All  the  large  cities  and  manufacturing  towns  teemed 
with  unemployed  workingmen  who  were  with  the 


DUTY    OF    CITIZENSHIP  199 

utmost  difficulty  kept  from  starvation  by  the  sys- 
tematic efforts  of  organized  charity."  This  was  also  a 
time  of  unprecedented  social  unrest  and  discontent 
and  of  Coxey's  ragged  "Army  of  the  Commonweal 
of  Clu-ist"  crying  for  food  and  work.  It  was  a  period 
of  misery  and  depression,  of  popular  discontent  and 
disturbance,  of  strikes,  riots,  destruction  of  property, 
murder  and  maiming  in  industrial  disputes.  No  one 
could  deny,  as  the  historian  pointed  out,  that  the 
country  had  fallen  upon  evil  times  and  that  Ameri- 
can workmen  found  it  harder  than  ever  to  live. 

We  have  only  to  recall  to  the  people's  minds  tlie 
conditions  of  unemployment,  poverty  and  misery 
which  followed  the  last  tariff  legislation  of  the 
Democratic  party,  and  compare  conditions  as  they 
exist  to-day.  The  people  of  this  country  will  make 
a  terrible  mistake  and  a  frightful  blunder  if  they 
now  vote  to  run  the  risk  of  a  repetition  of  those 
days  under  the  delusion  that  the  currency  system 
of  the  government  was  the  cause  of  the  business 
depression  and  misery  that  followed  immediately 
upon  the  election  of  Cleveland  in  1892  and  the 
passage  of  the  Wilson  tariff  law  in  1894 . 

Many  are  now  telling  the  people  that  the  tariff 
is  solely  responsible  for  the  high  cost  of  living  and 
for  the  prevalence  of  social  unrest  and  discontent. 
Such  phenomena  are  world-wide  and  exist  abroad 
as  much  as,  if  not  more  than,  they  exist  here.  In 
England,  which  has  no  protective  tariff,  the  com- 
plaint against  the  high  cost  of  living  has  been 
even  louder  than  here.      The  real  causes  of    the 


200  DUTY    OF    CITIZENSHIP 

increase  in  the  cost  of  living  with  us  undoubt- 
edly are:  (i)  enormous  increase  in  the  world's 
supply  of  gold,  necessarily  diminishing  the  pur- 
chasing value  of  the  dollar,  for  the  world's  gold 
production,  which  from  i85o  to  1890  averaged 
$120,000,000  per  annum  and  was  $i3o,65o,ooo  in 
1891,  increased  to  fully  $46i, 000,000  in  191 1,  (2) 
rapid  increase  of  population  without  a  corresponding 
increase  of  the  production  of  food  and  other  neces- 
saries of  life,  (3)  flocking  to  the  city  and  abandoning 
the  farm,  (4)  appreciation  in  land  values,  (5)  in- 
crease in  the  price  of  raw  materials,  (6)  higher  rates 
of  wages  and  decrease  in  the  number  of  hours  of  work, 
(7)  better  standards  of  living,  (8)  exhaustion  of  some 
sources  of  supply,  (9)  extravagance  in  public  expendi- 
tures, and  (10)  withdrawal  of  armies  of  civil  servants 
from  productive  industry.  These  are  the  prin- 
cipal and  controlling  causes  that  tend  to  the  higher 
cost  of  living;  they  are  world-wide,  and,  if  explained, 
they  will  be  easily  understood  and  recognized  by 
intelligent  and  candid  business  men  and  workmen, 
who  will  at  once  perceive  that  these  causes  will  not 
be  removed  in  any  degree  by  free-trade  legislation. 
Last  year  serious  disturbances  occurred  in  Europe 
as  a  result  of  the  prevailing  high  cost  of  food  supplies 
there,  and  the  British  board  of  trade  is  now  making 
an  investigation  into  the  cost  of  living,  not  only  in 
England  but  also  in  Germany,  France  and  Belgium. 
In  fact,  an  international  commission  is  at  this  mo- 
ment inquiring  into  these  causes.  How  preposter- 
ous it  would  be  to  say  that  the  American  protective 


DUTY    OF    CITIZENSHIP  201 

tariff  was  the  cause  of  the  high  cost  of  hving  in 
free- trade  England  or  elsewhere  in  Europe! 

Nor  is  the  protective  tariff  in  any  sense  responsible 
for  the  spirit  of  social  unrest  and  discontent  except, 
perhaps,  in  so  far  as  prosperity  begets  discontent 
and  multiplies  appetites.  Throughout  the  civilized 
world  in  recent  years  there  has  developed  a  spirit  of 
social  unrest  and  discontent,  of  disregard  of  law, 
and  of  disrespect  for  moral  principles  and  religious 
beliefs.  To  those  who  look  below  the  surface,  it  is 
more  and  more  evident  that  this  world-wide  symptom 
is  due,  in  greatest  measure,  to  the  spread  of  Socialism. 
According  to  the  teachings  of  the  Socialists,  avowed 
or  unavowed  (for  many  who  are  preaching  its  doc- 
trines would  resent  being  called  Socialists),  our 
entire  social  system  and  the  system  of  laws  under 
which  we  live  are  unjust  and  should  be  upset, 
property  rights  should  be  destroyed,  and  religious 
beliefs,  which  are  the  principal  source  of  our  respect 
for  law  and  order  and  the  rights  of  property,  should 
be  broken  down.  As  an  American  student  and 
writer  has  said,  a  single  passage  from  Licbknecht 
stands  fairly  for  opinions  that  may  be  quoted  from 
twenty  authoritative  socialist  sources  in  Europe. 
That  passage  is  as  follows:  "It  is  our  duty  as  Social- 
ists to  root  out  the  faith  in  God  with  all  our  zeal, 
nor  is  any  one  worthy  the  name  who  does  not  conse- 
crate himself  to  the  spread  of  atheism."  I  believe 
that  few  American  Socialists  have  gone  to  any  such 
extreme,  but  such  has  certainly  been  the  tendency 
and  teaching  of  Socialism  in  Europe. 


202  DUTY    OF    CITIZENSHIP 

Unfortunately  the  atmosphere  of  the  present 
campaign  is  calculated  to  obscure  and  hide  the  true 
issues  in  controversy  and  the  real  danger  that 
lurks  under  so  much  noise,  declamation  and  en- 
thusiasm. An  avowed  assault  and  an  open  declara- 
tion of  war  on  society,  on  our  form  of  government, 
or  on  our  courts  of  justice  would  bring  the  points 
so  clearly  before  the  American  people  that  none 
of  us  could  for  a  moment  doubt  the  outcome. 
We  Republicans  would  hail  and  welcome  an  open 
attack,  because  we  know  that  the  people  would  then 
quickly  and  overwhelmingly  rally  to  the  support  of 
our  party.  The  more  openly  constitutional  govern- 
ment and  our  social  system  are  attacked,  the  more 
strongly  will  they  become  cemented  in  the  affection 
and  reverence  of  the  people. 

Most  of  our  political  and  social  institutions  which 
are  now  being  assailed  as  antiquated  are  founded 
on  truths  which  ought  ever  to  be  self-evident. 
These  truths  sound  trite,  but  "trite  truths  are 
often  the  most  valuable  truths,  though  sometimes 
divested  of  force  by  their  very  triteness."  We  are 
constantly  hearing  talk  about  the  principles  of  the 
Constitution  being  antiquated  in  the  eyes  of  these 
modern  iconoclasts,  and  the  other  day  a  leader  of 
the  Progressives  in  this  state,  who  is  himself  a 
lawyer,  referring  to  the  Progressive  judicial  nomina- 
tions boasted  that  they  had  selected  men  who  did 
not  believe  in  a  "dead  constitution."  Yet  these  can- 
didates are  ready  to  accept  a  judicial  office  which 
they  could  not  rightly  fill  for  a  minute  without  tak- 


DUTY    OF    CITIZENSHIP  203 

ing  an  oath  to  support  the  Constitution  in  which 
they  do  not  beheve. 

When  a  truth,  be  it  pohtical,  moral,  or  rehgious, 
is  once  discovered  and  estabhshed,  it  is  eternal;  it 
loses  none  of  its  vitality  because  it  has  grown  old; 
it  never  dies.  If  some  religious  Progressive  —  and 
our  political  Progressives  affect  much  of  the  re- 
ligiously emotional  —  should  now  preach  a  new 
religion  and  proclaim  that  existing  religions  and 
their  restraints  should  be  cast  aside  simply  because 
they  are  old,  the  dullest  man  would  readily  see  the 
utter  fallacy  and  wickedness  of  such  an  argument. 
Imagine  any  one  seriously  arguing  that  the  Ten 
Commandments  are  worthless  and  dead  as  rules 
of  human  conduct  and  self-restraint  because  they 
are  four  thousand  years  old  and  were  first  enunciated 
in  an  age  not  so  rapid  as  our  ow  n  —  in  an  age  when 
there  were  no  printing  presses,  no  steam  engines, 
no  electricity  and  no  talking  machines!  Yet,  so 
long  as  our  civilization  endures,  so  long  as  human 
intelligence  lasts,  so  long  as  religion  shall  continue 
to  comfort  and  sustain  and  uplift  men  and  women, 
so  long  will  the  Ten  Commandments  be  sound  and 
true  rules  of  conduct  and  the  fundamental  basis  of 
all  religions.  Likewise  as  to  the  great  political 
documents  evidencing  the  progress  of  the  human 
race  upward  towards  liberty,  like  Magna  Carta, 
the  Bill  of  Rights,  the  Declaration  of  Independence, 
the  Constitution  of  the  United  States:  they  em- 
body and  declare  principles  of  political  justice  and 
fundamental  truths  which  are  eternal;    and  whilst 


504  DUTY    OF    CITIZENSHIP 

majorities  at  times  may  ignorantly  and  recklessly 
disregard  them  or  cast  them  aside  for  temporary 
objects,  they  are  as  eternal  and  imperishable  as  are 
the  Ten  Commandments. 

Of  the  many  revolutionary  schemes  in  the  Pro- 
gressive platform,  both  national  and  state,  one  of 
the  most  dangerous  and  far-reaching  is  the  proposal 
to  destroy  the  representative  character  of  our 
government  by  substituting  direct  action  by  the 
people  in  place  of  action  by  legislatures  and  officers 
elected  by  the  people.  This  is  to  be  accomplished 
through  the  initiative  and  the  referendum.  The 
movement  is  doubly  important  at  the  present  time 
because,  as  is  well  known,  the  Democratic  candi- 
date for  the  presidency,  after  teaching  directly  the 
contrary  for  many  years,  has  become  a  recent 
convert  to  these  ideas.  Although  such  a  scheme 
might  be  beneficial  or  harmless  in  the  little  town 
meetings  of  New  England,  in  small  municipalities, 
or  in  agricultural  states  having  a  homogeneous 
population  less  in  number  than  some  of  the  counties 
of  the  state  of  New  York,  the  initiative  and  the 
referendum  would  be  wholly  unsuited  to  an  empire 
such  as  ours  with  a  population  of  nearly  100,000,000, 
or  to  a  state  such  as  New  York  with  a  population 
of  nearly  10,000,000.  Would  it  not  be  absurd  and 
preposterous  to  have  the  thousands  of  bills  annually 
introduced  in  Congress  passed  upon  by  the  people 
at  large,  and  would  it  not  be  equally  absurd  and 
preposterous  for  a  state  like  New  York,  passing 
hundreds  of  bills  every  year,  to  give  a  small  minority 


DUTY    OF    CITIZENSHIP  205 

the  right  to  compel  the  submission  of  every  statute 
to  the  vote  of  the  people?  Would  it  not  be  httle 
short  of  calamitous  to  have  those  least  qualified  to 
understand  and  appreciate  the  changes  they  were 
making  pass  upon  and  control  legislation?  The 
result  would  be  chaos. 

The  great  men  who  founded  our  system  of  con- 
stitutional government  were  thoroughly  familiar 
with  the  theory  and  operation  of  pure  democracy 
or  direct  action  by  the  people,  as  distinguished  from 
representative  government.  They  saw  the  past 
failures  of  pure  democracy  and  the  danger  of  any 
such  system,  and  they  deliberately  dechned  to  adopt 
it.  In  speaking  of  "the  equal  rights  of  man," 
Jefferson  declared  that  "modern  times  have  the 
signal  advantage,  too,  of  having  discovered  the  only 
device  by  which  these  rights  can  be  secured,  to  wit, 
—  government  by  the  people,  acting  not  in  person, 
but  by  representatives  chosen  by  themselves." 

The  plain  truth  is  that  the  trouble  with  our  legisla- 
tures and  with  Congress  is  the  character  of  many  of 
the  men  whom  the  people  elect.  The  remedy  is  in 
the  hands  of  the  voters.  If  they  will  elect  capable 
and  honest  men  to  legislative,  executive  and  judicial 
office,  we  shall  have  a  cure  at  once.  We  need  a 
remedy,  not  a  poison. 

Those  who  urge  the  introduction  of  the  initiative, 
the  referendum  and  the  recall  base  their  argument  on 
the  ground  that  some  of  our  legislators  and  elective 
officers  are  incompetent  or  dishonest,  and  that, 
therefore,   the  people  should  reserve  the  right  to 


206  DUTY    OF    CITIZENSHIP 

control  their  actions  and  remove  them.  But  if 
our  legislators  or  other  elective  officers  are  incom- 
petent or  dishonest  —  if  they  are  not  truly  repre- 
sentative of  the  people  who  elect  them  —  then 
obviously  the  fault  lies  with  those  who  choose  them, 
and  the  remedy  is  to  take  such  measures  as  will 
ensure  the  election  of  competent,  honest  and  repre- 
sentative men.  If  the  people  are  now  too  busy  to 
concern  themselves  with  the  selection  of  honest 
and  capable  representatives,  is  it  reasonable  to 
expect  that  they  will  concern  themselves  about  the 
merits  of  hundreds  of  statutes  which  they  do  not 
half  understand,  or  about  the  qualifications  of  the 
officers  they  have  elected  and  would  recall  .^^  The 
fault  is  not  with  our  representative  system  of  govern- 
ment, but  either  with  the  party  organizations  that 
often  nominate  incompetent  or  dishonest  men,  or 
with  the  voters  who  tolerate  such  nominations  and 
elect  such  candidates.  Our  system  of  government, 
as  every  system  of  free  government,  is  based  on  the 
assumption  that  the  people  will  conscientiously 
exercise  the  elective  franchise,  and  unless  we  can 
depend  upon  an  honest,  sober-minded  and  patriotic 
majority  to  exercise  that  franchise,  our  system  of 
government  must  ultimately  prove  a  complete 
failure.  The  conscientious  exercise  of  the  elective 
franchise  is  not  merely  a  privilege  —  it  is  the  highest 
duty  of  citizenship.  With  the  great  increase  in 
population,  political  parties  and  party  organizations 
undoubtedly  have  become  a  practical  necessity,  and 
leadership   is   equally   necessary;    but   it   has   also 


DUTY    OF    CITIZENSHIP  207 

become  indispensable  that  these  party  organizations 
shall  be  conducted  honestly  so  as  to  represent  truly 
the  wishes  of  their  party  constituents.  The  urgent 
duty  of  citizenship  is  to  see  to  it  that  these  party 
organizations  are  conducted  honestly  and  in  a  repre- 
sentative manner;  but  this  is  not  to  be  accomplished 
by  disrupting  or  destroying  the  great  parties. 
Instead  of  puUing  down  the  temple,  we  should  drive 
out  the  money-changers.  Instead  of  killing  we 
should  cure.  What  we  urgently  need  is  legislation 
providing  for  fair  and  honest  party  primaries  and 
facilitating  independent  candidacies,  and  then  we 
should  go  farther  and  impose  a  penalty  or  tax  upon 
all  qualified  citizens  who  fail  to  cast  a  ballot  at  the 
annual  primaries  and  elections  prescribed  by  law. 

The  initiative,  the  referendum  and  the  recall  would 
not  cure  present  evils,  but  would  in  fact  only  inten- 
sify and  perpetuate  them.  The  power  and  control 
of  unrepresentative  and  irresponsible  party  machines 
w^ould  be  largely  increased  instead  of  being  curtailed. 
Better  men  would  not  be  nominated  and  elected, 
but  quite  the  contrary;  the  self-seeker,  advertiser 
and  mani})ulator  alone  would  be  nominated.  The 
exercise  of  the  initiative,  the  referendum  and  the  re- 
call would  be  determined  by  exactly  the  same  people 
who  now  control  our  nominations  and  elections.  It 
is  absurd  to  suppose  that  the  very  men  w  ho  so  often 
choose  incapable  or  dishonest  representatives  or  neg- 
lect to  vote  at  all  would  exercise  greater  efficiency 
in  supervising  legislation,  in  recalling  public  officers 
and  judges,  or  in  setting  aside  judicial  decisions. 


208  DUTY    OF    CITIZENSHIP 

Equally  absurd  is  the  idea  of  legislation  by  popular 
vote.  The  importance  of  framing  laws  and  consti- 
tutional amendments  in  clear  and  exact  language 
and  the  impracticability  of  doing  so  without  careful 
consideration  and  discussion  and  comparison  with 
existing  provisions,  as  in  legislative  committees,  must 
be  recognized  by  all  thinking  men.  Our  system  of 
laws  is  becoming  more  and  more  complex  every 
year,  and  unavoidably  so.  The  people  at  large 
cannot  be  expected  to  know  and  understand  a  great 
and  extremely  complex  system  of  laws,  and  it  is  no 
reflection  on  them  to  say  that  they  cannot  grasp  the 
details  of  legislation  any  more  than  it  would  be  to 
say  that  there  are  few  men  in  the  community  com- 
petent to  administer  as  judges  the  unavoidably 
intricate  system  of  laws  under  which  we  live. 

We  have  only  to  look  at  recent  experience  in  the 
state  of  New  York  in  regard  to  the  adoption  of 
constitutional  amendments,  the  most  important 
function  that  can  be  exercised  by  a  voter,  to  appre- 
ciate the  folly  of  the  proposed  remedies.  The  total 
vote  for  and  against  these  amendments  has  fre- 
quently been  less  than  one-half  —  and  at  times 
barely  one-quarter  —  of  those  who  actually  voted 
at  general  elections.  Thus,  to  take  three  recent 
experiences:  the  total  vote  cast  in  1909  on  an 
important  constitutional  amendment  was  only 
/i77,io5  as  against  a  total  vote  the  year  before  of 
i,638,35o;  the  total  vote  in  1910  on  another  im- 
portant constitutional  amendment  was  66/^,892  as 
against  1,445,249  votes  for  the  gubernatorial  candi- 


DUTY    OF    CITIZENSHIP  209 

dates,  and  seven  amendments  submitted  in  191 1 
were  defeated  with  an  average  total  vote  of  621,678. 
Similar  and  even  more  striking  experiences  will  be 
found  in  other  states.  Is  it  likely  that  there  would 
be  a  fuller  or  more  representative  and  intelligent 
expression  of  public  understanding  in  regard  to  com- 
plex legislative  enactments,  or  in  regard  to  the  recall 
of  judges  or  other  public  officers,  or  of  judicial  deci- 
sions than  we  find  now  in  the  case  of  important 
constitutional  amendments? 

To  render  judges  subject  to  recall  would  be 
utterly  destructive  of  the  character  and  independence 
of  our  judiciary.  No  self-respecting  lawyer  would 
serve  on  the  bench  under  such  conditions.  An  up- 
right judge  should  fearlessly  declare  and  enforce  the 
law  without  regard  to  popular  agitation  or  political 
pressure.  Frequently  he  is  called  upon  to  decide 
between  the  individual  on  the  one  side  and  a  clamor- 
ous majority  on  the  other  side  of  a  case  before  him. 
Take,  for  example,  our  situation  in  New  York  with 
Tammany  Hall  controlling  a  majority  of  the  voters 
of  the  city.  The  legislature  at  the  dictation  of  Mr. 
Murphy  passes  another  infamous  Levy  Election 
Law  avowedly  intended  to  prevent  independent 
nominations  even  for  the  bench.  The  judges  declare 
the  act  unconstitutional  and  protect  the  minority 
in  their  rights,  just  as  we  saw  them  protecting  the 
Progressives  a  few  weeks  ago.  According  to  Mr. 
Roosevelt  and  Mr.  Straus,  however,  Tammany  Hall 
should  have  the  power  to  punish  these  judges  by  re- 
calling them  and  should  have  the  right  to  pass  such 


210  DUTY    OF    CITIZENSHIP 

disgraceful  and  tyrannical  legislation  by  resort  to  the 
initiative  and  the  referendum!  Indeed,  it  is  impos- 
sible to  conceive  of  a  scheme  more  surely  calculated 
to  shatter  all  our  constitutional  rights,  as  well  as  all 
certainty  in  the  law.  Chief  Justice  Marshall  would 
have  been  repeatedly  recalled  for  unpopular  decisions 
wliich  are  now  universally  applauded  even  by  the 
Progressives.  Imagine  the  spectacle  of  recalling  a 
CuUen  or  a  Gray  because  he  had  dared  to  decide 
against  the  clamor  or  wishes  of  a  majority  controlled 
by  Tammany  Hall! 

I  have  nowhere  seen  a  stronger  statement  of  the 
objections  to  the  recall  of  judges  than  in  John  Stu- 
art Mill's  work  on  "Representative  Government," 
pubhshed  in  1861,  where  he  said:  "If  a  judge  could 
be  removed  from  office  by  a  popular  vote,  whoever 
was  desirous  of  supplanting  him  would  make  capital 
for  that  purpose  out  of  all  his  judicial  decisions; 
would  carry  all  of  them,  as  far  as  he  found  practica- 
ble, by  irregular  appeal  before  a  public  opinion 
wholly  incompetent,  for  want  of  having  heard 
the  case,  or  from  having  heard  it  without  either 
the  precautions  or  the  impartiality  belonging  to  a 
judicial  hearing;  would  play  upon  popular  passion 
and  prejudice  where  they  existed,  and  take  pains  to 
arouse  them  where  they  did  not.  And  in  this,  if 
the  case  were  interesting,  and  he  took  sufficient 
trouble,  he  would  infalhbly  be  successful,  unless  the 
judge  or  his  friends  descended  into  the  arena,  and 
made  equally  powerful  appeals  on  the  other  side. 
Judges  would  end  by  feeling  that  they  risked  their 


DUTY    OF    CITIZENSHIP  211 

office  upon  every  decision  they  gave  in  a  case  sus- 
ceptible of  general  interest,  and  that  it  was  less 
essential  for  them  to  consider  what  decision  was 
just,  than  what  would  be  most  applauded  by  the 
public,  or  would  least  admit  of  insidious  misrepre- 
sentation." 

Probably  no  more  crude,  impracticable,  or  absurd 
scheme  was  ever  proposed  by  any  one  claiming  to 
have  the  first  and  elemental  ideas  of  American 
constitutional  government  than  the  proposition  to 
render  subject  to  recall  or  reversal  by  a  majority 
vote  all  decisions  in  constitutional  cases  affecling 
statutes  passed  under  the  police  power.  The  term 
"police  power"  is  the  most  comprehensive  that 
could  have  been  employed.  Most  of  our  individual 
rights  are  covered  by  that  term;  and  when  the 
Progressives  say  that  a  statute  passed  under  the 
police  power  shall  be  valid  and  enforceable,  notwith- 
standing the  courts  may  declare  it  to  be  arbitrary, 
unjust  and  unequal  and  hence  unconstitutional,  if  a 
temporary  majority  see  fit  to  overrule  the  courts, 
they  propose  that  practically  all  the  most  vital  and 
cherished  of  our  supposed  inalienable  individual 
rights  —  our  personal  and  religious  liberty  —  shall 
in  final  result  be  at  the  mercy  of  any  temporary 
majority.  In  ultimate  analysis,  the  proposition  for 
the  recall  of  judicial  decisions  would  mean  that  the 
majority  should  act  as  umpire  in  any  dispute  as 
between  themselves  and  the  minority. 

The  hatred  of  the  courts  which  the  Progressives 
now  share  in  common  with  the  Socialists,  Anarchists 


212  DUTY    OF    CITIZENSHIP 

and  Populists,  and  that  part  of  organized  labor  and 
labor  unions  typified  and  represented  by  such  men 
as  the  McNamaras,  the  Debses  and  the  Parks  (who 
in  truth  shamefully  misrepresent  the  great  majority 
of  law-abiding  and  patriotic  members  of  these 
organizations),  has  forced  into  this  campaign  an 
unparalleled  attack  upon  our  judicial  system  and 
the  administration  of  justice. 

When  the  New  York  state  Progressive  platform 
was  first  given  to  the  press  on  September  3rd,  the 
judiciary  plank  read  as  follows:  "We  heartily 
indorse  the  declarations  of  our  national  platform 
respecting  the  judiciary  and  favor  their  embodiment 
in  the  organic  law  of  the  state.  We  condemn  the 
past  attitude  of  the  New  York  Court  of  Appeals 
toward  various  important  and  humane  measures 
of  social  legislation." 

The  unprecedented  indecency  of  this  attack  upon 
the  Court  of  Appeals  immediately  produced  such  a 
storm  of  indignation  throughout  the  state  that  the 
clause  appears  later  to  have  been  amended  so  as  to 
eliminate  that  sentence.  The  final  form  given  to 
the  public  omits  this  denunciation  of  the  highest 
court  of  our  state,  and  confines  the  plank  to  the 
proposals  of  the  national  platform.  I  have  time 
now  to  discuss  only  two  of  these  planks. 

The  Progressives  declare  in  their  extraordinary 
and  revolutionary  platform:  "We  believe  that  the 
issuance  of  injunctions  in  cases  arising  out  of  labor 
disputes  should  be  prohibited,  when  such  injunctions 
would  not  apply  when  no  labor  disputes  existed." 


DUTY    OF    CITIZENSHIP  213 

This  should  be  compared  with  substantially  the  same 
declaration  in  the  Bryan  platform  of  1908,  in  which 
the  Democratic  party  declared:  "We  deem  .  .  .  that 
injunctions  should  not  be  issued  in  any  cases  in 
wliich  injunctions  would  not  issue  if  no  industrial 
dispute  were  involved." 

It  must  seem  incredible  that  the  cultured  and 
talented  man  who  now  stands  on  the  Progressive 
platform  soliciting  the  votes  of  the  people  was  the 
President  of  the  United  States  who  in  a  formal 
message  to  Congress  on  January  3i,  1908,  on  the 
subject  of  injunctions  in  labor  disputes,  used  the 
following  language:  "Even  though  it  were  possible, 
I  should  consider  it  most  unwise  to  abolish  the  use 
of  the  process  of  injunction.  It  is  necessary  in 
order  that  the  coiu-ts  may  maintain  their  own 
dignity,  and  in  order  that  they  may  in  an  effective 
manner  check  disorder  and  violence.  The  judge 
who  uses  it  cautiously  and  conservatively,  but  who, 
when  the  need  arises,  uses  it  fearlessly,  confers  the 
greatest  service  upon  oiu*  people,  and  his  pre-eminent 
usefulness  as  a  public  servant  should  be  heartily 
recognized." 

During  the  campaign  of  1908,  President  Roosevelt 
fiercely  denounced  Mr.  Bryan  and  Mr.  Gompers  for 
the  plank  above  quoted  but  which  he  has  now 
adopted.  He  then  wrote  a  long  letter  to  Senator 
Knox  in  which  he  exposed  the  danger  and  dishonesty 
of  this  plank.  It  would  be  necessary  to  read  the 
whole  of  the  letter  in  order  to  appreciate  President 
Roosevelt's  indignation  and  horror  that  Bryan  and 


214  DUTY    OF    CITIZENSHIP 

Gompers  should  favor  such  a  proposition.  I  shall 
quote  only  a  few  sentences  as  samples  of  the  whole. 
President  Roosevelt  then  wrote  as  follows:  "This 
is  the  plank  that  promises  the  'remedy'  against 
injunctions  which  Mr.  Gompers  asked  of  Mr. 
Bryan's  party.  In  actual  fact,  it  means  absolutely 
nothing;  no  change  of  the  law  could  be  based  on  it; 
no  man  without  inside  knowledge  could  foretell 
what  its  meaning  would  turn  out  to  be,  for  no  man 
could  foretell  how  any  judge  would  decide  in  any 
given  case,  as  the  plank  apparently  leaves  each 
judge  free  to  say  when  he  issues  an  injunction  in  a 
labor  case  whether  or  not  it  is  a  case  in  which  an 
injunction  would  issue  if  labor  were  not  involved." 
Later  the  President  continued:  "Mr.  Gompers,  now 
Mr.  Bryan's  open  and  avowed  ally,  has,  in  the 
letter  here  quoted,  attacked  the  federal  courts  in 
unmeasured  terms  of  reproach  because,  by  a  long 
line  of  decisions,  the  equity  courts  have  refused  to 
make  an  outlaw  of  the  business  man,  because  his 
right  to  carry  on  a  lawful  business  under  the  peace 
of  the  law  has  been  protected  by  the  process  of 
injunction,  because  in  a  word  one  of  the  most  vital 
and  most  fundamental  rights  of  the  business  world 
—  the  right  of  a  business  man  to  carry  on  his  busi- 
ness —  has  been  sustained  and  not  denied  by  the 
processes  of  the  courts  of  equity.  This  sweeping 
attack  of  Mr.  Gompers  upon  the  judiciary  has  been 
made  in  a  frank  and  open  effort  to  secure  votes  for 
Mr.  Bryan."  Mr.  Roosevelt  concluded  the  letter 
as  follows:    "But  there  is  another  account  against 


DUTY    OF    CITIZENSHIP  215 

Messrs.  Bryan  and  Gompers  in  this  matter. 
Ephraim  feedeth  on  wind.  Tlieii*  proposed  remedy 
is  an  empty  sham.  They  are  seeking  to  delude 
their  followers  by  the  promise  of  a  law  which  would 
damage  their  country  solely  because  of  the  vicious 
moral  purpose  that  would  be  shown  by  putting  it 
upon  the  statute  books,  but  which  would  be  utterly 
worthless  to  accomplish  its  avowed  purpose.  I 
have  not  the  slightest  doubt  that  such  a  law  as  that 
proposed  by  Mr.  Bryan  would,  if  enacted  by  Con- 
gress, be  declared  unconstitutional  by  a  unanimous 
Supreme  Court,  unless,  indeed,  Mr.  Bryan  were 
able  to  pack  this  court  with  men  appointed  for  the 
special  purpose  of  declaring  such  a  law  constitu- 
tional." 

The  Progressive  plank  against  the  power  of  the 
courts  to  punish  for  contempt  is  equally  revolu- 
tionary. It  declares  in  favor  of  depriving  the  courts 
of  the  power  to  punish  for  contempt  except  after  a 
trial  by  jury. 

The  crusade  to  deprive  the  courts  of  the  power  to 
punish  for  contempt  began  at  the  time  of  the  Chicago 
strike  of  1894  when  Eugene  Debs  and  liis  fellow- 
conspirators  were  found  to  be  guilty  of  open,  con- 
tinued and  defiant  disobedience  of  an  injunction 
order  of  the  United  States  court  which  had  been 
duly  served  upon  them.  It  will  be  recalled  by  most 
of  you  that  if  the  courts  had  not  then  had  power 
to  punish  for  contempt  without  a  prior  conviction 
by  a  jury  —  and  imagine  the  chance  of  an  impartial 
jury-trial  during  the  continuance  of  a  great  riot  — 


216  DUTY    OF    CITIZENSHIP 

the  Debs  party  would  have  had  the  city  of  Chicago 
and  the  great  railway  commerce  passing  through 
it  completely  at  its  mercy.  All  who  want  to  know 
the  facts  and  to  realize  the  danger  from  the  condition 
of  affairs  then  existing  should  read  Mr.  Cleveland's 
account  of  the  strike  in  his  book  on  "Presidential 
Problems,"  published  in  igo/i,  and  the  opinion  of 
the  Supreme  Court  of  the  United  States  unanimously 
upholding  the  punishment  of  Debs  and  his  asso- 
ciates for  contempt. 

The  power  of  the  courts  to  punish  for  contempt 
has,  from  the  earliest  history  of  jurisprudence 
and  as  far  back  as  the  annals  of  our  law  extend, 
"been  regarded  as  a  necessary  incident  and 
attribute  of  a  court,  without  which  it  could  no 
more  exist  than  without  a  judge,"  and  "a  court 
without  the  power  effectually  to  protect  itself  against 
the  assaults  of  the  lawless  or  to  enforce  its  orders, 
judgments,  or  decrees  against  the  recusant  parties 
before  it,  would  be  a  disgrace  to  the  legislature, 
and  a  stigma  upon  the  age  which  invented  it." 
The  Supreme  Court  of  the  United  States  de- 
clared in  the  Debs  case  that  "this  is  no  technical 
rule.  In  order  that  a  court  may  compel  obedience 
to  its  orders  it  must  have  the  right  to  inquire 
whether  there  has  been  any  disobedience  thereof. 
To  submit  the  question  of  disobedience  to  another 
tribunal,  be  it  a  jury  or  another  court,  would 
operate  to  deprive  the  proceeding  of  half  its  effi- 
ciency." ^ 

1  1 58  United  States  Reports,  p.  Bg^-BgS. 


DUTY    OF    CITIZENSHIP  217 

The  bait  now  offered  to  the  lawless  and  mis- 
guided among  the  laborers  of  America  by  Mr. 
Roosevelt  is  the  abolition  of  the  only  effective 
means  of  preventing  violence  and  the  destruction 
of  property  in  labor  disputes,  first,  by  taking 
away  from  the  courts  the  power  to  issue  in- 
junctions and,  secondly,  by  emasculating  the  power 
to  enforce  obedience  to  their  orders  and  judg- 
ments. Of  course,  if  any  such  revolutionary  and 
anarchistic  measures  were  now  embodied  in  the 
organic  law  of  this  state,  as  proposed  by  the 
Progressive  state  platform,  the  community  would 
be  placed  completely  at  the  mercy  of  the  violent 
and  the  lawless.  Is  it  not  lamentable  and  humiliat- 
ing to  see  an  ex-President  of  the  United  States  and 
an  ex-member  of  his  cabinet  and  ex-ambassador 
thus  pandering  to  the  mob  spirit  for  votes? 

In  conclusion,  I  want  to  add  that  the  American 
people  know  where  President  Taft  and  Vice-President 
Sherman  stand  on  every  great  question  before  the 
people.  They  have  been  tried  and  not  found  want- 
ing. These  candidates  can  be  trusted  and  relied 
upon  to  keep  every  pledge  of  their  party's  platform. 
If  anybody  can  now  tell  where  Governor  Wilson 
stands,  except  as  a  free  trader,  a  radical  and  an 
opportunist,  he  is  much  more  discerning  than  most 
of  us  are.  The  glory  of  our  party  is  that  for  fifty-six 
years,  in  victory  and  in  defeat,  it  and  its  candidates 
have  stood  consistently  and  uncompromisingly  for 
the  principles  of  human  liberty  and  human  progress. 
It  is  still  the  party  of  principle  and  of  progress,  as 


218  DUTY    OF    CITIZENSHIP 

it  is  the  party  of  protection  for  American  labor  and 
industry.  President  Taft  would  be  entitled  to  the 
gratitude  of  the  whole  nation,  irrespective  of  party, 
if  the  only  service  of  his  administration  had  been 
his  attempt  in  good  faith  to  withdraw  the  tariff 
from  party  politics,  to  introduce  some  system  in 
fixing  the  amount  of  necessary  protection  to  be 
determined  by  experts  and  non-partisan  boards, 
and  to  establish  business-like  methods  of  economy 
and  efficiency  in  every  department.  Great  honor, 
too,  will  the  future  historian  record  to  his  credit 
when  recounting  that  in  a  period  of  political  up- 
heaval, of  social  unrest  and  discontent,  of  impatience 
with  law,  of  pandering  to  revolutionary  instincts,  he 
stood  as  President  of  the  United  States  firmly,  un- 
compromisingly and  sturdily  for  the  right,  and  put 
all  his  trust  and  confidence  in  the  sober  second 
thought  and  profound  patriotism  of  the  American 
people,  in  their  attachment  to  law  and  orderly  pro- 
gress, and  in  their  determination  that  the  American 
system  of  constitutional  representative  government 
"shall  not  perish  from  the  earth." 


NOMINATING  CONVENTIONS  ' 

THE  Direct  Primary  Law  of  191 1-  abolished  all 
political  conventions  except  the  state  conven- 
tion, but  the  Direct  Primary  Law  of  iQiS  ^  went 
further  and  abolished  the  state  convention,  striking 
the  article  on  conventions  and  even  the  definition  of 
a  convention  from  the  text  of  the  law.  Although 
the  new  law  contains  in  section  /i5  a  provision  that 
nothing  therein  contained  shall  prevent  a  party 
from  holding  a  party  convention,  to  be  constituted 
in  such  manner  and  with  such  powers  in  relation  to 
formulating  party  platforms  and  policies  and  the 
transaction  of  business  relating  to  party  affairs,  as  the 
rules  and  regulations  of  the  party  may  provide,  not 
inconsistent  with  the  Election  Law,  it  was  clearly  the 
intention  of  its  framers  that  such  party  conventions 
should  not  deal  with  the  most  important  subject 
which  parties  had  theretofore  dealt  with,  namely,  the 
nomination  of  candidates  for  public  office.  Indeed, 
section  /i6,  as  amended  in  igiS,  expressly  provides 
that  designations  of  candidates  for  party  nomina- 
tions shall  be  "by  petition  only"  in  the  manner 
provided  in  the  Election  Law. 

1  Remarks  before  the  Committee  on  Suffrage  of  the  Constitutional 
Convention  of  the  state  of  New  York  at  Albany,  June  i6,  iQiS. 

2  Laws  of  191 1,  ch.  891.  ^  Laws  of  iqiS,  ch.  820. 


220  NOMINATING    CONVENTIONS 

The  privilege  of  nominating  elective  state  officers 
by  means  of  delegate  conventions  thus  denied  by 
the  Election  Law  of  the  state  of  New  York  ought, 
in  my  judgment,  to  be  recognized  as  essentially 
a  constitutional  right,  which  the  legislature  should 
not  be  at  liberty  to  abridge.  The  right  to  assemble 
peaceably  for  the  purpose  of  nominating  candidates 
is  certainly  a  political  right  of  permanent  importance 
and  vital  concern  to  all  citizens,  and  it  should  be 
guaranteed  by  constitutional  provision  and  not  left 
to  abridgment  or  denial  by  the  legislature.  The 
present  state  constitution  regulates  the  qualifica- 
tions of  voters,  the  registration  of  citizens  entitled 
to  vote,  and  the  creation  of  registration  and  election 
boards.  But  it  does  not  contain  a  single  provision  in 
regard  to  nominations  for  office,  even  for  the  office 
of  governor,  although  nominations  for  state  offices 
are  of  far  greater  importance  to  the  body  politic  than 
many  of  the  matters  now  regulated  by  constitutional 
provision  or  recited  in  the  bill  of  rights.  I  desire  to 
urge  upon  your  careful  consideration  the  value  of 
nominating  conventions  as  a  constitutional  right. 

The  constantly  increasing  functions  of  the  mod- 
ern state  have  made  the  executive  and  administra- 
tive departments  the  most  important  and  powerful 
branches  of  government,  and  the  increasing  com- 
plexity of  governmental  machinery  has  rendered  it 
absolutely  essential  that  competent  and  trained  pub- 
lic officials  should  be  chosen.  Government  has  become 
an  extremely  difficult  and  scientific  business,  and 
special  capacity,  training  and  expert  knowledge  are 


NOMINATING    CONVENTIONS  221 

more  and  more  required  in  executive  and  administra- 
tive office.  Tlic  test  of  a  good  government  is  more 
than  ever  its  abiiity  to  produce  good  administra- 
tion. If  we  are  to  have  efficient  and  avoid  wasteful 
administration,  the  greatest  care  must  be  exercised 
in  selecting  candidates.  As  Governor  Tliroop  said 
nearly  a  century  ago,  "there  is  perhaps  no  part  of 
the  duties  of  citizenship  which  requires  more  sound 
judgment  and  honesty  and  singleness  of  purpose 
than  those  relating  to  the  nomination  and  election  of 
executive  and  administrative  officers."  Indeed,  good 
government  depends  in  final  results  much  more  on 
the  ability  and  character  of  the  men  who  admin- 
ister it  than  upon  laws  or  institutions.  The  maxim, 
constantly  on  the  hps  of  so  many,  that  a  government 
of  laws  and  not  of  men  is  the  controlling  desideratum, 
may  be  grossly  misleading,  for  the  best  system  of 
laws  in  the  hands  of  incompetent,  inefhcient  and 
dishonest  administrators  will  produce  far  worse 
results  than  an  inferior  system  in  the  hands  of 
competent,  efficient  and  honest  public  officials. 
The  most  difficult  task  and  the  highest  duty  that 
our  electorate  are  ever  called  upon  to  perform  is, 
therefore,  the  selection  of  candidates  for  elective 
state  office.  In  order  to  perform  that  duty,  it  is  im- 
perative that  there  should  be  adequate  and  reliable 
means  of  information,  full  opportunity  for  confer- 
ence, exchange  of  views,  debate  and  criticism  as  to 
the  capacity  and  character  of  candidates,  and  effec- 
tive methods  of  cooperation  and  organization  in 
support  of  qualified  candidates. 


222  NOMINATING    CONVENTIONS 

The  selection  of  a  governor  for  the  great  state  of 
New  York,  containing  more  than  io,25o,ooo  inhabi- 
tants and  comprising  a  pohtical  constituency  larger 
than  any  other  in  this  country,  is  certainly  a 
matter  of  vital  and  profound  concern  to  the  whole 
body  politic,  to  every  citizen,  to  every  community, 
to  every  party,  to  every  class,  to  every  interest. 
If  the  short  ballot  be  now  adopted,  the  successful 
administration  of  the  whole  state  government  will 
practically  be  staked  upon  the  selection  of  qualified 
candidates  for  governor.  All  hope  of  governmental 
reform,  efficiency  and  economy  will  then  necessarily 
depend  upon  the  statesmanship  and  character  of 
one  man,  who  will  be  vested  with  full  executive  and 
administrative  powers  over  a  population  and  a 
territory  larger  than  some  of  the  nations  of  the 
world.  A  wise  and  safe  choice  will  be  infinitely 
more  essential  and  more  difficult  than  in  the  past. 
In  fact,  if  the  views  of  certain  advocates  of  the  short 
ballot  prevail,  we  are  to  vest  all  this  power  in  the 
governor  for  a  term  of  four  years,  without  restraint 
of  any  kind  except  his  sense  of  responsibility  to 
the  people,  and  without  any  effective  check  upon 
his  will  or  caprice.  We  should  have  to  trust  him 
absolutely.  We  should,  in  truth,  have  precisely  the 
definition  of  an  elective  despotism  and  tyranny  — 
beneficent  if  we  are  so  fortunate  and  blessed  as 
to  secure  an  exceptionally  able  and  high-minded 
statesman  for  governor,  baneful  if  an  incompetent, 
untrained,  or  scheming  politician  or  demagogue 
should  be  elected.    The  governor  would  then  have  it 


NOMINATING    CONVENTIONS  223 

immediately  within  his  power  to  become  an  absolute 
state  boss  through  the  use  of  an  enormous  and 
constantly  increasing  patronage,  directly  or  indirectly 
reaching  and  touching  every  election  district  in  the 
state.  He  would  be  able  to  break  party  lines 
asunder,  to  promote  the  interests  of  any  group  or 
faction,  to  punish  adversaries,  to  cater  to  any 
class,  to  sacrifice  the  rights  of  minorities,  to  sub- 
stitute his  will  or  caprice  for  the  policy  of  his 
party,  to  permit  waste  and  extravagance,  to  dictate 
who  should  be  his  successor.  A  competent  candi- 
date for  governor  who  would  be  so  well  known  and 
tested  as  to  be  safely  relied  upon  to  resist  this 
temptation  would  indeed  be  a  phenomenon.  If 
history  teaches  us  that  there  is  anything  certain  in 
human  nature,  if  experience,  which  is  of  far  more 
value  than  any  mere  reasoning  or  theorizing,  has 
again  and  again  demonstrated  any  practical  and 
eternal  trutli  in  politics,  it  is  that  unrestrained 
power  inevitably  leads  sooner  or  later  to  abuse  and 
tyranny,  and  that  no  one  official,  be  he  emperor, 
king,  president,  or  governor,  can  safely  be  entrusted 
with  any  such  power. 

We  should  bear  in  mind  that  the  extreme  advo- 
cates of  the  short  ballot,  by  eliminating  all  require- 
ments for  the  approval  and  consent  of  the  senate 
in  regard  to  the  appointment  of  heads  of  the  great 
state  departments,  would  make  the  governor  su- 
preme and  independent  of  the  legislature,  even  more 
independent  and  powerful  than  is  the  President  un- 
der the  Constitution  of  the  United  States.    I  sincerely 


224  NOMINATING    CONVENTIONS 

liope  that  the  Convention  will  not  make  this  grave 
mistake.  The  number  of  state  elective  officers 
should  not  be  reduced  to  less  than  four,  namely, 
governor,  lieutenant-governor,  comptroller  and  at- 
torney-general. The  comptroller  should  be  made 
an  auditing  officer  charged  with  supervision  as 
such  over  the  various  departments  of  the  state 
and  independent  of  the  appointing  power.  The 
attorney-general  should  be  made  the  head  of  a 
department  of  justice  and  the  responsible  legal 
adviser  of  the  governor  and  of  every  state  official. 
And  the  heads  of  all  the  great  departments  should 
be  appointed  by  the  governor  with  the  approval 
and  consent  of  the  senate.  No  governor  should 
be  given  the  unrestrained  power  to  appoint  or  to 
remove  the  heads  of  all  departments.  The  require- 
ment of  the  consent  of  the  senate  is  a  necessary  and 
salutary  restraint  upon  all  governors,  good  or  bad. 
It  is  better  and  safer  that  governors  should  be 
compelled  to  submit  to  some  restraints  than  that 
absolute  power  should  be  vested  in  even  the  best 
and  ablest  and  purest  of  men.  The  principle  of  a 
short  ballot  is  the  decrease  of  elective  offices,  but  not 
necessarily  the  placing  of  absolute  and  unrestrained 
power  in  the  hands  of  one  man. 

It  is  quite  true  that  a  state  constitution  should 
deal  only  with  permanent  and  fundamental  provisions 
and  should  not  attempt  to  regulate  matters  of  detail 
which  can  be  adequately  dealt  with  by  ordinary  legis- 
lation and  which  are  in  their  nature  and  operation 
readily  changeable.     I  am  in  full  accord  in  this,  as 


NOMINATING    CONVENTIONS  225 

in  other  respects,  with  the  state  platform  adopted  by 
the  Repubhcan  party  last  year  and  on  which  the 
Republican  delegates  to  the  Constitutional  Con- 
vention were  elected.  Subordinate  and  non-essen- 
tial matters  of  mere  regulation  and  detail  ought 
not  to  be  embodied  in  constitutions.  But  I  ven- 
ture to  assert  that  in  reason  and  sound  policy  there 
can  be  no  more  important,  permanent,  or  funda- 
mental constitutional  provision  than  one  relating 
to  the  manner  of  selecting  the  highest  state  officers 
in  whom  all  the  executive  and  administrative 
powers  of  our  state  government  are  to  be  vested. 
This  is  a  subject  eminently  fit  and  proper  for  a 
constitution  to  regulate.  If  this  convention  cannot 
solve  the  problem  of  establishing  a  sound  system  of 
nomination  for  elective  state  offices,  at  least  in 
outline  and  cardinal  features,  no  legislature  can  be 
expected  to  do  so.  In  any  event,  the  new  Constitu- 
tion should  emphatically  declare  that  the  right 
peaceably  to  assemble  in  a  political  convention 
composed  of  duly  elected  delegates  or  representatives 
for  the  purpose  of  nominating  candidates  for  pul^lic 
office,  state  or  local,  should  not  be  abridged,  as  it 
is  abridged  by  the  present  Election  Law. 

I  further  venture  to  assert  that  the  question  of 
nominating  candidates  by  delegate  conventions  in- 
volves in  its  essence  the  perpetuation  of  the  funda- 
mental principles  of  representative  government  and 
of  the  republican  form  of  government  which  the 
founders  intended  to  establish  and  to  guarantee  to 
each  state  of  the  Union. 


226  NOMINATING    CONVENTIONS 

The  one  great  contribution  which  the  Enghsh- 
speaking  race  has  made  to  the  science  of  pohtics 
has  been  the  representative  principle.  It  has  been 
truly  declared  that  every  lasting  liberty  secured 
for  the  individual,  every  lasting  reform  towards 
stability  in  government  and  permanent  effectiveness 
in  administration,  every  lasting  advancement  made 
in  politics  during  the  past  two  centuries,  has  been 
by  and  through  the  representative  system.  The 
subordination  of  public  officials  to  the  law,  and  their 
liability  under  the  law  for  every  illegal  act,  sprang 
from  the  representative  principle.  The  independence 
of  the  judiciary,  that  great  bulwark  of  liberty  and 
of  the  rights  of  the  individual,  has  followed  upon 
the  growth  and  success  of  the  representative  princi- 
ple. The  vivifying  spirit  or  essence  of  the  representa- 
tive principle  is  the  determination  of  all  questions  of 
practical  government  by  delegates  or  representatives 
chosen  by  the  people,  who  it  is  assumed  can  act  more 
intelligently  and  better  discern  the  true  interests  of 
their  country  than  a  multitude  of  voters  dispersed 
over  an  extensive  territory.  Government  under  the 
representative  principle  includes  not  merely  legis- 
lation by  the  chosen  representatives  of  the  people, 
but  the  practical  conduct  of  the  executive  depart- 
ment and  its  administrative  branches  by  officials 
selected  or  nominated  by  representatives  of  the 
people.  Despite  all  attacks  upon  our  political  in- 
stitutions and  all  instances  of  mistakes  and  malad- 
ministration, the  sound  common  sense  of  thoughtful 
citizens  still  confirms  the  judgment  of  the  founders 


NOMINATING    CONVENTIONS  227 

of  our  government  that  the  only  safe  course  is  to 
follow  the  representative  principle.  This  is  as  true 
to-day  as  it  was  when  the  "  Federalist  "  was  written. 
The  direct  nomination  of  executive  or  judicial  officers 
is  in  utter  disregard  of  that  principle. 

If  the  function  of  legislation  is  in  the  long  run 
most  satisfactorily  performed  by  a  representative 
body  composed  of  men  from  every  locality  and 
every  part  of  a  state,  and  if  it  would  be  unsafe 
to  vest  the  lawmaking  power  in  the  executive 
branch,  does  it  not  likewise  follow  that  the  equally 
important  function  of  selecting  candidates  for  ex- 
ecutive and  judicial  office  and  formulating  party 
policies  and  platforms  will  be  better  performed  by  a 
representative  body,  such  as  delegate  conventions, 
than  by  being  left  to  the  mass  of  voters  ?  If  more 
intelligent  legislation  and  wiser  action  are  likely  to 
result  from  a  representative  body  than  from  the 
confusion  of  a  multitude  of  voters,  is  it  not  also 
evident  that  more  intelligent  and  discriminating 
selection  of  executive  officers  w  ill  be  made  by  chosen 
representatives,  as  in  nominating  conventions,  than 
by  the  people  at  large? 

It  should  be  borne  in  mind  that  our  system  of 
republican  government  differs  from  other  representa- 
tive governments  in  the  practical  and  effective 
separation  of  powers.  In  England  and  in  France 
the  legislators,  that  is  the  delegates  or  representa- 
tives elected  by  the  people,  appoint  and  control  all 
executive  and  administrative  officers  and  carry  on 
the  executive  and  administrative  branches  of  govern- 


228  NOMINATING    CONVENTIONS 

ment.  There  the  legislative  and  executive  powers 
are  practically  united  in  the  same  body.  Under 
our  system  the  legislators  do  not  elect  or  appoint 
executive  officers.  It  is,  therefore,  essential,  as  I  am 
profoundly  convinced,  that  executive  officers  should 
be  nominated  by  duly  qualified  representatives  if 
the  representative  principle  is  to  be  maintained. 

Nomination  of  executive  officers  by  direct  prima- 
ries will  inevitably  be  subversive  of  the  true  spirit 
of  the  representative  system,  and  the  secrecy  of  the 
vote  in  the  nominating  primaries  will  ultimately  be 
destructive  of  all  sense  of  responsibility.  The  en- 
rolled voter  marking  his  ballot  in  secret  will 
frequently  feel  no  sense  of  responsibility  or  accounta- 
bility to  his  neighbors  and  fellow-citizens,  and  will 
frequently  fail  to  appreciate  that  his  vote  is  a 
sacred  trust  to  be  exercised  for  the  good  of  the 
community.  The  secrecy  of  the  primary  vote  thus 
does  a  great  moral  mischief  in  destroying  the  sense 
of  political  responsibility  and  accountability.  A 
public  declaration  in  connection  with  nominations 
for  office,  involving  as  it  does  a  recommendation  to 
other  voters  of  fitness  and  qualification  for  the 
particular  office,  is  a  much  more  effective  restraint 
on  corruption  and  perversion  of  the  popular  vote 
than  any  scheme  of  secrecy  which  leaves  no  one 
publicly  responsible  for  unfit  and  improper  nomina- 
tions. In  my  judgment,  the  primgu-y  system  tends 
to  promote  the  nomination  of  self-advertisers,  dema- 
gogues and  wire-pullers  by  irresponsible  minorities, 
groups,  factions,  cabals,  or  secret  societies,  generally 


NOMINATING    CONVENTIONS  229 

composed  of  persons  acting  in  the  dark  and  domi- 
nated or  controlled  by  leaders  who  cannot  be  held  to 
any  accountabihty,  however  much  they  may  abuse 
or  prostitute  the  political  power  they  exercise. 

The  nomination  of  candidates  for  public  office, 
whether  national,  state,  or  local,  by  means  of  party 
conventions,  caucuses,  or  conferences,  was  intro- 
duced and  long  existed  without  any  statutory 
regulation.  The  practice  sprang  up  normally  and 
from  necessity  as  soon  as  the  increase  of  population 
rendered  it  impracticable  for  the  voters  to  come 
together  in  mass  or  town  meeting.  The  body  of 
voters,  who  could  not  spend  the  time  necessary  to 
investigate  as  to  the  quahfications  of  candidates, 
or  attend  political  debates,  and  who  could  know 
little  or  nothing  of  the  competency  and  character 
of  candidates,  naturally  recognized  that  the  best 
and  safest  course  would  be  to  elect  delegates  or 
representatives  from  each  neighborhood,  who,  meet- 
ing delegates  or  representatives  from  other  districts, 
could  exchange  views,  criticize,  discuss  and  agree 
upon  policies  and  nominations,  and  thus  act  more 
intelligently,  advisedly  and  wisely  than  would  other- 
wise be  possible. 

The  growth  of  constituencies,  the  multiplication 
of  elective  offices,  and  the  neglect  of  their  political 
duties  by  the  majority  of  electors  led  to  many  abuses 
in  the  management  of  nominating  conventions,  and 
legislation  became  necessary  in  order  to  prevent 
frauds  in  connection  with  the  conduct  of  primaries 
and  conventions.    In  promoting  this  legislation,  it  was 


230  NOMINATING    CONVENTIONS 

argued  that,  if  citizens  were  assured  the  right  to  be 
enrolled  in  the  party  to  which  they  desired  to  belong 
and  to  vote  at  primaries  and  freely  to  exercise  their 
choice  for  delegates  to  conventions,  they  would  be 
stimulated  to  take  part  in  the  primaries,  and  that 
this  would  result  in  preventing  party  nominations 
for  office  from  being  controlled  by  those  who  made 
politics  their  business  or  used  improper  or  corrupt 
methods.  Hence  the  primary  reform  measures  intro- 
duced by  legislation  in  our  state  in  the  nineties. 

These  measures,  however,  proved  to  be  sadly 
disappointing  to  many  of  their  promoters.  This  was 
not  because  the  statutes  were  in  themselves  defective 
or  inadequate,  but  because  it  was  found  to  be  im- 
possible by  mere  legislative  enactment  to  induce  a 
majority  of  the  electors  to  enroll  in  their  parties  or 
to  take  any  active  part  or  interest  in  politics. 
Although  under  these  primary  laws  the  nominating 
conventions  could  at  any  time  have  been  readily 
controlled  by  the  electorate  at  large,  had  the  .voters 
only  taken  the  trouble  to  enroll  and  vote  at  the 
primaries,  great  dissatisfaction  arose  or  was  fomented 
or  manufactured,  and  a  demand  created  for  the  total 
abolition  of  the  convention  and  the  introduction  of 
the  experiment  of  a  direct  primary  system,  upon  the 
notion  that  this  would  stimulate  greater  political 
interest,  enable  the  enrolled  voters  to  control  and 
elect  their  own  candidates,  bring  nominations  closer 
to  the  people,  and  curtail  and  ultimately  destroy 
the  power  of  the  politicians  and  bosses.  The  new 
experiment  was  based   upon  the  assumption   that 


NOMINATING    CONVENTIONS  231 

if  enrolled  electors  could  vote  directly  for  candidates 
instead  of  for  representatives  to  nominating  conven- 
tions, they  would  thereby  be  induced  to  take  a  more 
active  interest  in  politics,  to  overthrow  the  control 
or  domination  of  bosses  and  professional  politicians, 
and  to  make  better  selections  than  had  ever  been 
made  before.  In  a  word,  it  was  assumed  in  the 
face  of  all  experience  to  the  contrary  that,  if  the 
voters  had  the  direct  power,  they  would  perform 
their  political  duties,  that  better  qualified  and  more 
competent  and  independent  candidates  would  offer 
themselves  or  somehow  would  be  brought  to  the 
attention  of  the  electorate,  and  that  nominations 
Avould  then  represent  the  will  or  choice  of  the  ma- 
jority in  each  party,  and  not  the  will  of  minorities, 
or  the  choice  of  bosses.  How  the  majority  were  to 
ascertain  the  qualifications  of  particular  candidates 
or  cooperate  to  secure  the  nomination  of  the  best 
qualified  was  left  in  the  air.  It  seemed  to  be 
thought,  following  the  absurd  and  exploded  doctrines 
of  Rousseau,  that  the  people  would  always  want 
and,  by  a  process  of  political  inspiration,  would 
intuitively  and  instinctively  select,  the  best  men 
for  public  office. 

The  result  so  far  has  refuted  all  these  assumptions, 
hopes  and  promises.  The  people  at  large  do  not  take 
part  in  the  primaries,  and  the  political  machines 
are  more  powerful  than  ever.  Thus,  in  New  York 
county,  the  Republican  vote  for  governor  at  the 
direct  primaries  of  igi/i  was  only  23,3o5,  out  of  a 
total  enrollment  of  56,io8  and  a  vote  in  November 


232  NOMINATING    CONVENTIONS 

of  85,478;  the  Democratic  primary  vote  was  only 
48,673  out  of  a  total  em-oUment  of  132,693  and  a 
vote  in  November  of  90,666,  and  the  Progressive 
primary  vote  was  only  6,972  out  of  a  total  enroll- 
ment of  19,705  and  a  vote  in  November  of  5,6o4. 
It  will  be  readily  perceived  from  these  figures  that  a 
small  minority  of  the  voters  in  each  party  took  the 
trouble  to  participate  in  the  direct  primary  elections, 
even  in  the  case  of  the  nomination  for  governor  of 
our  state,  as  to  which  there  was  an  exciting  contest 
in  each  party.  An  examination  of  the  figures 
tliroughout  the  entire  state  will  show  that  the 
voters  in  nearly  all  districts  took  less  interest  in 
direct  primary  elections  for  nominations  than  they 
were  accustomed  to  take  under  the  old  convention 
system  and  that  the  controlling  power  is  still  being 
exercised  by  the  organization,  but  now  acting  in 
secret  and  utterly  irresponsible.  For  example,  the 
Republican  primary  vote  for  governor  in  Bronx 
county  was  5,276  against  a  Republican  vote  of  29,865 
in  November,  and  in  Richmond  county  the  Republi- 
can primary  vote  for  governor  was  984  against  a 
Republican  vote  of  5,477  ^^  November.  It  is  prob- 
ably correct  to  assume  that  not  one-half  of  the 
Repubhcan  or  Democratic  voters  now  enroll,  and 
that,  on  an  average,  less  than  one-half  of  the  en- 
rolled voters  take  the  trouble  to  go  to  the  primaries, 
even  when  there  is  a  serious  contest,  as  was  the  case 
last  year  for  governor.  There  were  then  three  pro- 
posed Republican  candidates.  Whitman,  Hedges  and 
Hinman,  and  the  result  was  that  less  than  one-sixth 


NOMINATING    CONVENTIONS  233 

of  the  Republican  vote  in  November  might  have  been 
sufficient  to  carry  the  primaries,  the  total  Republican 
vote  for  governor  having  been  686,701  as  against  a 
total  primary  vote  of  226,087  for  the  three  candidates. 
Under  the  present  direct  primaries,  the  voters  of  a 
small  portion  of  the  state  can  put  a  candidate  in 
nomination  by  petition;  any  number  of  names  may 
be  put  on  the  official  primary  ballot,  and  a  candidate 
may  be  put  in  nomination  by  a  very  small  minority 
vote  confined  to  a  single  locality.  In  fact,  twenty  or 
more  names  can  be  placed  by  petition  on  the  official 
primary  ballot  of  any  party  as  candidates  for  any 
elective  office,  and  the  name  of  the  person  receiving 
the  largest  number  of  votes  will  be  that  of  the  candi- 
date of  a  great  party,  to  whose  support  the  party 
will  be  committed  and  for  whose  conduct  in  office 
the  party  will  be  responsible,  although  the  successful 
candidate  may  be  entirely  unknown  to  nineteen- 
twentieths  of  the  voters  at  that  particular  primary. 
Under  the  present  primary  system,  in  view  of  the 
small  number  of  those  participating  in  primaries,  an 
insignificant  percentage  of  the  voters  at  a  primary 
could  nominate  a  candidate  of  whose  qualifications 
and  personal  character  the  majority  of  the  party  were 
wholly  ignorant,  or  a  candidate  whom  an  overwhelm- 
ing majority  would  utterly  repudiate.  Sulzer  came 
very  near  carrying  the  direct  primary  of  the  Pro- 
gressive party.  This  shows  how  readily  the  direct 
primary  system  engenders  factions  and  irresponsi- 
bility, and  how  unfit  it  is  for  securing  the  expression 
of  the  intelligent  and  instructed  will  of  the  majority 


234  NOMINATING    CONVENTIONS 

of  any  party.  Moreover,  there  is  no  way  of  ascer- 
taining for  whom  petitions  are  being  circulated; 
no  publicity  is  required  even  after  the  time  for 
filing  petitions,  and  the  great  majority  of  enrolled 
voters  generally  have  no  idea  of  the  candidates  for 
office  on  the  official  primary  ballot  until  they  open 
the  official  ballots  at  their  polling-places.  The  press 
is  either  uninterested  or  partisan,  and  it  fails  ade- 
quately to  discuss  the  qualifications  and  character 
of  candidates. 

I  submit  that  it  is  absurd  to  claim  that  such  a 
method  of  nominating  state  officers  to  administer 
government  for  a  population  of  over  10,000,000  is 
more  likely  to  secure  competent  and  trustworthy 
candidates,  or  to  express  the  real  preference  and  the 
sober  and  intelligent  judgment  of  the  majority  of  the 
voters  of  each  party,  than  the  old  method  of  nomi- 
nating state  officers  by  public  conventions  composed 
of  delegates  and  representatives  of  the  voters  from 
each  assembly  or  election  district  of  the  state,  pro- 
ceeding in  the  open  with  full  opportunity  for  inves- 
tigation, discussion  and  criticism. 

The  conventions  of  the  two  great  political  parties 
held  at  Saratoga  last  year,  at  which  the  party 
platforms  in  respect  of  the  approaching  Constitu- 
tional Convention  were  adopted  and  fifteen  delegates- 
at-large  "recommended,"  were  wholly  unofficial  and 
unregulated  by  law.  What  was  practically  the 
nomination  by  the  conventions  of  candidates  for 
delegates-at-large  was  unauthorized  and  operated 
only  as  a  mere  recommendation.     They  had  to  be 


NOMINATING    CONVENTIONS  235 

nominated  by  petition  as  fully  as  if  the  conven- 
tions had  never  met.  These  conventions  thus  nomi- 
nated delegates  because  they  realized,  and  every 
thinking  man  in  the  state  appreciated,  that  it  would 
be  preposterous  to  leave  the  selection  and  nomination 
of  fifteen  delegates-at-large  to  the  mass  of  enrolled 
voters  who  would  have  no  opportunity  for  conference 
and  exchange  of  view  s  in  respect  of  the  qualifications 
and  character  of  the  candidates.  Some  informed, 
responsible  and  representative  body  of  men  had  to 
act,  and  therefore  the  conventions  acted  —  in  the 
very  teeth  of  the  law.  They,  however,  refrained  from 
considering  candidates  for  the  great  office  of  gov- 
ernor, on  the  theory  that  it  would  be  violating  the 
spirit  and  intent  of  the  Election  Law  to  take  any 
action  in  regard  to  candidates  for  that  office!  What 
inconsistency !  The  most  important  and  vital  subject 
of  the  governorship  was  left  to  the  hazard  of  peti- 
tions circulated  among  the  enrolled  voters  tliroughout 
the  state.  There  were  no  organizations  of  any  kind 
among  the  voters,  except  what  are  known  as  the 
political  organizations,  and  no  other  means  of  com- 
munication and  exchange  of  views  or  debate.  Of 
course,  it  was  confidently  anticipated  that  the  or- 
ganization in  each  party  would  determine,  or  at  least 
would  have  it  within  its  power  to  determine,  who 
should  be  the  candidates  of  that  party.  Such  proved 
to  be  the  case.  No  candidate  was  nominated  at  the 
direct  primaries  for  a  state  office  unless  he  was  sup- 
ported by  the  regular  organization  or  machine  of  his 
party.  And  that,  I  believe,  will  be  the  practical  result 


236  NOMINATING    CONVENTIONS 

of  direct  primaries  in  nine  cases  out  of  ten,  and 
more  readily  and  frequently  and  unsatisfactorily 
than  under  the  old  convention  system. 

Careful  observers  of  the  operation  of  the  primary 
law  last  year  in  this  state,  and  for  several  years  in 
other  states,  have  become  convinced  that  the  re- 
sult of  this  so-called  reform  has  been  not  only  to 
increase  the  power  of  the  regular  organization  or 
machine  but  to  render  it  utterly  irresponsible. 
The  organization  now  acts  in  secret  behind  closed 
doors  and  without  accountability  to  any  one  except 
its  own  inner  circle.  The  leaders  have  only  to 
whisper  their  orders  over  the  telephone  to  the 
workers  in  each  district,  preserving  no  record,  and 
the  desu-ed  result  is  accomplished.  If  an  unfit  and 
improper  nomination  is  made,  the  leaders  can 
disclaim  all  responsibility  and  say  that  such  is  the 
will  of  the  sovereign  people.  As  the  vote  at  the 
primary  is  secret,  no  one  can  be  blamed;  there  is 
no  individual  or  group  of  individuals  upon  whom 
responsibility  can  ever  be  fastened.  If  it  be  argued 
that  there  is  actual  responsibility  and  that  everyone 
knows  it,  then  I  answer  that  this  is  only  by  admitting 
that,  after  all,  the  secret  machine  or  boss  is  in  fact 
responsible  and  still  rules,  and  now  more  effectively 
than  ever. 

As  has  been  pointed  out  by  many  able  writers,  the 
convention  system  in  the  past  has  been  of  inestimable 
service  to  this  country.  With  all  its  vagaries,  it  af- 
forded the  highest  test  of  a  political  representative 
institution  in  a  democratic  community  and  the  sound- 


NOMINATING    CONVENTIONS  237 

est  and  purest  application  of  the  principle  of  repre- 
sentation or  delegated  authority ;  it  operated  to  bind 
party  elements  firmly  together;  it  afforded  full  oppor- 
tunity for  exchange  of  views,  criticism  and  debate,  for 
the  propagation  of  principles,  for  the  conciliation  of 
factions;  it  inspired  enthusiastic  party  life.  The 
convention,  if  honestly  conducted,  was  a  thoroughly 
representative  and  deliberative  body,  and  it  was  the 
true  cause  of  party  success  and  of  the  maintenance 
and  perpetuation  of  party  principles  and  policies, 
as  Avell  as  political  faith  and  devotion.  In  a  word, 
the  convention  was  and  still  is  the  best  instrument 
ever  devised  for  securing  concert  of  choice  and  re- 
sponsible and  intelligent  action  by  large  bodies  of 
voters  belonging  to  the  same  political  party  and 
believing  in  the  same  political  faith,  principles  and 
policies. 

I  am  not  at  all  bhnd  to  the  fact  that  there  have 
been  great  abuses  in  the  convention  system,  and 
that  conventions  have  been  at  times  corruptly 
organized  or  conducted.  But  I  know  of  no  form  of 
abuse  or  corruption  which  could  not  have  been 
remedied  by  appropriate  and  intelligent  legislation, 
or  which  could  not  have  been  prevented  in  New  York 
by  action  of  the  voters  if  the  legislation  of  the  past 
twenty-five  years  had  been  generally  availed  of  by 
the  majority  in  each  party.  The  control  of  all  nomi- 
nations was  in  the  hands  of  the  majority,  if  they  had 
only  taken  the  trouble  to  enroll  and  vote  for  com- 
petent representatives  at  primary  elections.  There  is 
no  practical  remedy  for  abuse  of  power,  fraud,  or 


238  NOMINATING    CONVENTIONS 

corruption  in  nominations  for  office  but  the  participa- 
tion in  politics  of  all  voters  as  a  duty  of  citizensliip. 
The  notion  that  the  direct  primary  would  ehminate 
the  professional  politician  and  the  boss  has  been 
shown  to  be  false  in  every  state  where  the  scheme 
has  been  tried.  Indeed,  quite  the  contrary  has 
been  the  result,  and  the  last  condition  is  worse  than 
the  first;  for,  to  repeat  myself,  manipulators,  wire- 
pullers and  political  bosses  now  work  in  secret  and 
by  underground  channels  without  any  responsibihty 
or  accountability  whatever,  and  are,  nevertheless, 
able  cynically  to  point  to  the  direct  primary  as  the 
expression  of  the  people's  sovereign  will  —  a  primary 
which  may  be  carried  by  a  very  small  minority  of 
the  party. 

I  assume  that  all  the  members  of  this  Constitu- 
tional Convention  believe  that  the  existence  of 
political  parties  is  essential  to  the  success  of  free 
government  and  to  permanence  and  stability  of 
political  policy,  and  that  the  perpetuation  of  party 
government  is  desirable  for  the  welfare  and  best 
interests  of  this  state.  Men  cannot  secure  results 
and  compass  their  ends  in  politics,  any  more  than 
in  most  other  human  concerns  and  matters  requiring 
concerted  action,  except  by  organization,  coopera- 
tion, discipline  and  responsibility.  The  value  of 
the  service  rendered  to  the  American  people  by  the 
great  political  parties  is  incalculable,  and  if  these 
parties  are  to  be  disrupted  and  their  organization 
and  cohesiveness  undermined,  the  result  must  in- 
evitably   be    a   most   serious    injury    to    the  body 


NOMINATING    CONVENTIONS  239 

politic.  Whether  we  regard  pohtical  parties,  on  the 
one  liand,  as  organizations  of  men  beheving  in  the 
same  pohtical  faith,  principles  and  policies  and  unit- 
ing to  introduce  or  uphold  those  principles  and 
policies,  or,  on  the  other  hand,  merely  as  organiza- 
tions to  secure  office  and  administer  government 
—  both  of  which  aspects  present  patriotic  motives  — 
it  is  desirable  for  the  permanent  welfare  of  the  peo- 
ple of  every  free  country  that  parties  should  be 
maintained,  and  particularly  that  there  should  be 
two  great  responsible  parties,  each  striving  for  con- 
trol and  ready  to  assume  the  responsibihty  of  gov- 
ernment and  of  the  adoption  of  particular  measures. 
A  pubhc  official  who  belongs  to  a  great  political 
party  and  owes  his  preferment  to  that  party  is  un- 
der a  double  sense  of  responsibility  for  efficiency, 
honesty  and  consistency  in  pubhc  office.  He  has  a 
sense  of  responsibility  and  duty  to  the  state  as  a 
whole,  and  he  has  a  sense  of  responsibihty  and 
duty  to  his  party,  and  both  are  moral  factors  of 
inestimable  worth  in  securing  integrity,  efficiency 
and  industry  in  public  office. 

In  its  real  origin,  the  movement  to  abohsh  the  con- 
vention system  and  introduce  direct  nominating  pri- 
maries sprang  not  from  any  hope  of  reforming  the 
existing  political  parties  but  from  a  desire  to  subvert 
and  destroy  the  American  system  of  government 
by  pohtical  parties.  The  scheme  was  later  taken 
up  by  men  who  sincerely  desired  to  reform  party 
management  and  correct  party  abuses,  who  con- 
scientiously despaired  of  reform  within  the  parties 


240  NOMINATING    CONVENTIONS 

themselves,  and  who  conceived  and  finally  came  to 
believe  that  betterment  could  be  brought  about  only 
by  uprooting  and  casting  aside  all  the  party  ma- 
chinery, organization  and  discipline  which  had  been 
built  up  by  the  practical  experience  of  over  a  century. 
The  plea  of  bringing  the  government  back  to 
the  people  was  catching  and  plausible,  and  it  found 
eager  response  in  the  deeply  rooted  dislike  of  party 
machinery,  party  discipline  and  party  constancy  on 
the  part  of  those  who  habitually  neglect  all  attention 
to  politics  and  the  political  duties  of  citizenship 
except  during  periods  of  popular  excitement  and 
upheaval. 

Although  I  am  one  of  those  who  believe  in  in- 
dependence in  politics  and  in  the  right  and  duty 
of  every  citizen  to  vote  against  his  party  if  in 
his  judgment  the  public  interests  so  require,  I 
profoundly  believe  that  party  government  and 
party  organization  and  machinery  are  absolutely 
essential  under  our  form  of  government.  Pohtical 
parties  in  America  have  given  stability  to  govern- 
mental policies  and  have  created  the  only  effec- 
tive restraint  upon  disintegration  and  individual 
caprice  or  demagogism.  There  must  be  coherence 
in  political  forces;  there  must  be  concentration  and 
direction  of  the  political  energy  of  communities ;  there 
must  be  some  systematic  and  practical  method  of 
investigating  the  qualifications  of  candidates  and 
selecting  competent  public  officials;  there  must  be 
stability,  harmony  and  cooperation  in  governmental 
pohcies.    These  can  be  secured  in  the  long  run  only 


NOMINATING    CONVENTIONS  241 

by  and  tlirough  permanently  organized  and  disci- 
plined political  parlies.  No  other  method  has  yet 
been  discovered  by  wliich  effectively  to  express  polit- 
ical opinion,  to  secure  stability  in  governmental  ad- 
ministration and  policies,  and  to  effectuate  the  real 
and  permanent  judgment  of  the  people  and  promote 
their  best  interests. 

President  Wilson  some  years  ago,  in  referring  to 
attacks  upon  party  government  in  the  United  States, 
used  the  following  striking  language,  which  I  think 
should  be  now  recalled: 

"I  know  that  it  has  been  proposed  by  enthusiastic, 
but  not  too  practical,  reformers  to  do  away  with 
parties  by  some  legerdemain  of  governmental  recon- 
struction, accompanied  and  supplemented  by  some 
rehabihtation,  devoutly  to  be  wished,  of  the  virtues 
least  commonly  controlling  in  fallen  human  nature; 
but  it  seems  to  me  that  it  would  be  more  difficult 
and  less  desirable  than  these  amiable  persons  suppose 
to  conduct  a  government  of  the  many  by  means  of 
any  other  device  than  party  organization,  and  that 
the  great  need  is,  not  to  get  rid  of  parties,  but  to 
find  and  use  some  expedient  by  which  they  can  be 
managed  and  made  amenable  from  day  to  day  to 
pubHc  opinion."  "Whatever  their  faults  and  abuses, 
party  machines  are  absolutely  necessary  under  our 
existing  electoral  arrangements,  and  are  necessary 
chiefly  for  keeping  the  several  segments  of  parties 
together.  ...  It  is  important  to  keep  this  in 
mind.  Otlicrwise,  when  we  analyze  party  action, 
we  shall  fall  into  the  too  common  error  of  thinking 


242  NOMINATING    CONVENTIONS 

that  we  are  analyzing  disease.  As  a  matter  of  fact 
the  whole  thing  is  just  as  normal  and  natural  as  any 
other  political  development.  The  part  that  party 
has  played  in  this  country  has  been  both  necessary 
and  beneficial,  and  if  bosses  and  secret  managers  are 
often  undesirable  persons,  playing  their  parts  for 
their  own  benefit  or  glorification  rather  than  for  the 
public  good,  they  are  at  least  the  natural  fruits  of 
the  tree.  It  has  borne  fruit  good  and  bad,  sweet 
and  bitter,  wholesome  and  corrupt,  but  it  is  native 
to  our  air  and  practice  and  can  be  uprooted  only  by 
an  entire  change  of  system.  "^ 

For  these  reasons  I  earnestly  urge  upon  the  Consti- 
tutional Convention  of  the  state  of  New  York  the 
restoration  of  nominating  state  conventions  for  elec- 
tive state  offices.  I  do  so  because  I  beheve  that  they 
are  the  best  means  of  maintaining  political  parties,  of 
formulating  theu*  principles  and  pohcies,  of  purifying 
and  disciphning  their  management,  of  stimulating 
poHtical  enthusiasm  and  disinterestedness,  and  of 
selecting  and  nominating  fit  and  representative  indi- 
viduals as  candidates  for  high  public  office.  I  further 
urge  that  the  nominees  of  any  such  convention  should 
not  need  any  further  designation  than  the  fifing  of  a 
certificate  by  the  proper  convention  officers.  If  it  be 
concluded,  however,  that  the  direct  primary  system 
should  be  continued  for  the  purpose  of  party  nomina- 
tions, then  it  should  be  provided  that  the  name  of 
the  nominee  of  the  convention  should  be  placed  on 

1  Congressional  Government,  p.  97,  and  Constitutional  Government 
in  the  United  States,  pp.  209,  210. 


NOMINATING    CONVENTIONS  243 

the  official  primary  ballot  with  the  designation  "nom- 
inated by  convention."  Tliis  would  enable  the  en- 
rolled voters  to  ratify  or  overrule  the  action  of  their 
convention.  I  am,  however,  convinced  that  this  nom- 
inating primary  would  impose  an  unnecessary  burden 
upon  the  electorate,  and  that  it  would  be  a  mistake 
to  increase  the  number  of  elections.  We  should  then 
have  three  elections:  first,  the  election  of  delegates 
to  the  nominating  convention;  second,  the  official 
primaries,  and  third,  the  general  election.  It  seems 
to  me  that  it  would  answer  every  purpose  if  ade- 
quate provision  were  retained  for  independent  nom- 
inations by  petition  and  if  nominating  primaries 
were  dispensed  with.  This  would  enable  voters 
belonging  to  any  party  to  place  candidates  in  the 
field  in  opposition  to  the  nominees  of  the  convention 
if  they  were  dissatisfied  with  those  nominees. 

Assuming  that  we  are  to  continue  the  system  of 
electing  judges  to  our  highest  judicial  ofiices,  that 
is,  judges  of  the  Court  of  Appeals  and  justices  of 
the  Supreme  Court,  then  I  submit  that  candidates 
for  these  very  important  offices  should  be  nominated 
by  conventions  and  not  by  direct  primaries.  I 
regard  this  as  even  more  essential  in  the  case  of 
nomination  for  judicial  office  than  in  the  case  of 
nomination  for  executive  office. 

The  qualities  required  in  a  candidate  for  high 
judicial  office  are  knowledge  of  the  law,  love  of 
justice,  high  personal  character,  calmness,  impar- 
tiahty  and  independence.  Mere  popularity,  or  what 
so  often  is  necessary  to  populcU"ity,  good-feUowship, 


244  NOMINATING    CONVENTIONS 

is  the  last  quality  we  look  for  in  a  judge.  The 
self-seeker  and  self-advertiser  is  seldom  qualified  by 
temperament  or  character  for  judicial  office.  It 
requires  the  most  thorough  investigation  as  to  the 
professional  learning,  career  and  conduct  of  a  candi- 
date and  the  most  sifting  exchange  of  views  before 
a  judicial  candidate  can  be  intelligently  and  wisely 
selected.  For  want  of  adequate  means  of  acquir- 
ing information,  the  public  in  such  large  constitu- 
encies as  the  whole  state  of  New  York  (in  the  case 
of  judges  of  the  Court  of  Appeals)  and  the  various 
judicial  districts  (in  the  case  of  justices  of  the  Su- 
preme Court)  cannot  intelligently  estimate  the 
qualifications  of  judicial  candidates.  It  seems  to 
me  nonsense  to  argue  that  in  parties  composed 
of  hundreds  of  thousands  of  enrolled  electors 
dispersed  throughout  the  state,  the  voters  can 
investigate,  or  exchange  views,  or  intelligently  act 
in  regard  to  the  qualifications  of  lawyers  who  are 
proposed  as  candidates  for  judicial  office  —  almost 
as  preposterous  as  if  we  were  to  select  judicial 
candidates  by  lot  from  the  names  placed  on  the 
official  primary  list. 

The  test  of  fitness  for  judicial  office  should  in- 
disputably be  higher  and  more  technical  than  for 
other  offices.  That  test  should  require  special 
capacity  and  character,  to  be  ascertained  by  careful 
investigation,  exchange  of  views,  open  discussion 
and  comparison  of  merits  by  responsible  delegates 
or  representatives  charged  with  that  particular  duty 
and  acting  in  public  and  personally  accountable  for 


NOMINATING    CONVENTIONS  245 

mistake,  perversion,  or  corruption.  This  test  can 
be  best  secured  by  the  convention  system;  practi- 
cally it  cannot  be  secured  at  all  by  any  system 
of  secret  direct  primaries. 

Reform  in  the  selection  of  judges,  if  their  selection 
is  to  be  by  election,  lies  not  in  schemes  to  reform 
human  nature  by  legislative  nostrums  and  to  destroy 
publicity  and  responsibility,  but  in  making  the 
voters  appreciate  that  the  government  is  theirs, 
that  political  power  is  theirs,  that  theirs  is  the  duty 
to  send  competent  representatives  to  conventions, 
that  theirs  is  the  responsibility  of  electing  competent 
men,  and  that  they  are  vitally  interested  in  having 
a  competent,  impartial  and  independent  judiciary. 
Political  conventions  will  be  reliable  and  responsive 
if  the  people  will  only  see  to  it  that  competent, 
honest  and  patriotic  men  are  elected  to  represent 
them.  There  is  no  other  course  unless  we  uproot 
our  whole  system  of  republican  government. 

Ten  years  of  experimenting  with  our  Election  Law 
have  produced  the  present  hodge-podge  under  which 
no  election  is  conducted  without  error  and  without 
inviting  a  lawsuit  and  from  which  all  but  experts 
and  professional  politicians  turn  away  in  irritation 
and  disgust.  The  net  result  has  been  to  complicate 
our  elections  and  make  them  less  and  less  responsive 
to  the  best  public  opinion,  and  more  and  more 
subject  to  the  control  of  professional  politicians, 
wire-pullers  and  bosses. 

In  conclusion,  though  repeating  myself,  I  earnestly 
submit  that  there  can  be  no  greater  menace  to  our 


246  NOMINATING    CONVENTIONS 

political  institutions  and  to  government  by  the 
people  than  the  prevailing  tendency  to  weaken  and 
impair  the  representative  principle  in  our  state  gov- 
ernments by  nominating  executive  and  judicial 
officers  through  direct  secret  primaries  instead  of 
through  public  conventions  composed  of  delegates 
or  representatives  duly  chosen  by  the  enrolled  voters 
of  the  parties  and  charged  with  the  duty  of  selecting 
competent  and  honest  candidates  and  directly  ac- 
countable to  the  locality  they  represent  for  the  fail- 
ure to  perform  that  duty.  These  delegates  represent 
the  people  of  the  various  districts  of  the  state;  they 
come  together  in  public;  they  exchange  and  discuss 
views,  or  at  any  rate  have  full  opportunity  for  debate 
and  criticism;  they  vote  in  public  for  this  or  that 
candidate,  and  then  they  return  to  their  neighbors,  to 
those  who  sent  them  and  for  whom  they  spoke  and 
voted,  and  face  accountability  and  responsibility. 
Is  not  such  a  proceeding  much  more  likely  to  secure 
competent  and  honest  candidates  than  the  present 
system  of  leaving  the  voter  at  large  to  slip  into  a 
dimly  lighted  booth  and  secretly  place  a  cross  on 
an  unidentifiable  ballot?  The  convention  system 
is  sound  and  should  be  preserved;  it  alone  will  per- 
petuate our  parties  and  our  form  of  government,  and 
in  casting  the  representative  principle  aside,  as  is 
necessarily  done  in  the  direct  primary  system  of 
nominations  for  state  and  judicial  office,  we  are  be- 
ginning a  process  which,  if  not  checked,  will  end  in 
what  Lincoln  called  political  suicide. 


CATHOLIC  PAROCHIAL  SCHOOLS^ 

THE  completion  of  this  building,  its  dedication 
to  education,  and  the  opening  of  its  doors  as  a 
Catholic  parochial  school  are  matters  of  no  ordinary 
significance  in  this  community.  By  means  of  the 
present  function  we  are  publicly  emphasizing  the 
religious  character  of  the  educational  work  to  be 
undertaken  here.  Due  respect  for  the  opinion  of  our 
neighbors  and  fellow-citizens  seems  to  call  for  some 
statement  from  the  standpoint  of  the  Catholic  laity 
in  explanation  of  the  reasons  which  have  impelled  a 
comparatively  poor  congregation  to  incur  this  great 
expense  and  to  assume  an  obligation  of  future  main- 
tenance which  year  after  year  will  constitute  a  very 
serious  and  increasing  burden.  It  is  indeed  a  strik- 
ing event  that  a  congregation,  very  few  of  whom 
have  large  means,  should  have  erected  and  equipped 
such  a  building,  costing  over  $i5o,ooo,  and  should 
have  pledged  itself  to  support  the  school  and  ulti- 
mately to  discharge  the  remaining  mortgage  indebt- 
edness of  ^5o,ooo. 

There  is  unfortunately  much  misunderstanding 
and  criticism  among  our  fellow-citizens  of  other 
denominations  in  regard  to  the  attitude  of  the  Roman 

1  Remarks  at  the  dedication  of  the  Roman  Catholic  parochial  school 
at  Glen  Cove,  Long  Island,  New  York,  on  September  6,  igi5. 


248         CATHOLIC    PAROCHIAL    SCHOOLS 

Catholic  Church  towards  the  important  and  far- 
reaching  subject  of  the  education  of  children  in  the 
public  schools,  and  the  Catholic  point  of  view  is  fre- 
quently misrepresented. 

In  the  first  place,  it  is  constantly  asserted  that 
Catholics  are  opposed  to  the  public  school  system  of 
America.  On  the  contrary.  Catholics  approve  and 
support  the  public  schools,  and  willingly  vote  and 
pay  their  share  of  the  taxes  necessary  for  the  main- 
tenance of  these  schools.  They  believe  that  the 
state  should  provide  free  common  schools  for  the 
education  of  children,  so  that  every  American  child 
not  only  shall  have  an  opportunity  of  securing  a 
free  education  but  may  be  compelled  to  take  advan- 
tage of  the  opportunity  thus  provided.  They  recog- 
nize that  in  this  country  it  is  generally  impracticable 
in  the  common  schools  to  teach  the  tenets  of  relig- 
ious faiths,  because  to  compel  children  indiscrim- 
inately to  study  the  doctrines  of  any  particular 
religion  in  which  their  parents  do  not  believe  would 
destroy  all  religious  freedom  and  would  be  con- 
trary to  fundamental  rights.  They  recognize  further 
that  to  attempt  to  teach  in  the  public  schools 
the  tenets  of  the  Catholic,  the  Jewish  and  the  nu- 
merous Protestant  denominations,  would  be  quite 
impossible  and  inevitably  would  lead  to  religious 
chaos.  They  realize  that  absolute  equality  or  reli- 
gious freedom  can  be  secured  only  by  making  the 
public  schools  non-sectarian.  Catholics,  therefore, 
favor  the  maintenance  of  the  system  of  free  common 
schools;    they  have  heretofore  supported  and  will 


CATHOLIC    PAROCHIAL    SCHOOLS         249 

continue  to  support  the  system,  although  they 
object  to  some  of  the  details  of  management,  and 
they  will  send  and  do  send  their  children  to  these 
public  schools  wherever  there  are  no  Catholic  schools. 
In  fact,  fully  one-half  of  the  Catholic  children  of  our 
country  are  now  attending  public  schools  because  of 
the  lack  of  Catholic  schools. 

Thousands  of  well-to-do  Protestants  and  Jews  — 
many  in  our  own  immediate  neighborhood  —  send 
their  children  to  private  schools,  whether  day  or 
boarding  schools,  in  many  of  which  the  Protestant 
faith  is  taught.  Yet  no  one  suggests  that,  because 
these  parents  send  their  children  to  private  schools, 
they  are  in  any  sense  acting  in  hostility  to  the  public 
schools,  or  to  American  institutions,  or  to  the  best  in- 
terests of  their  own  children.  As  parents,  they  have 
and  ought  to  have  the  right  to  send  their  children 
to  such  schools  as  they  think  will  afford  them 
an  education  more  complete  and  more  conducive 
to  the  formation  of  moral  character  than  they 
can  secure  at  the  public  schools.  Catholics  are  but 
exercising  the  same  common  right,  and  what,  more- 
over, they  believe  to  be  their  duty  as  parents,  when 
they  send  their  children  to  the  parochial  schools 
which  are  erected,  equipped  and  maintained  at  their 
own  expense. 

Another  misrepresentation,  and  one  which  Catho- 
lics resent,  is  the  statement  that  the  parochial  and 
other  Catholic  schools  do  not  inculcate  patriotism, 
and  that  they  teach  anti- American  doctrines.  Any 
candid  investigator  will  readily  find  that  this  charge 


250         CATHOLIC    PAROCHIAL    SCHOOLS 

is  wholly  unfounded.  In  Catholic  schools,  patriot- 
ism, obedience  to  the  law  and  loyalty  to  the  Consti- 
tution are  taught  as  a  religious  even  more  than  a 
civic  duty;  the  best  and  highest  ideals  of  American 
patriotism  and  citizenship  are  exalted.  No  true 
American  Catholic  can  be  other  than  a  good  and 
patriotic  American  citizen.  Children  are  taught  in 
these  schools  that  loyal  obedience  to  the  laws  and 
religious  tolerance  are  the  two  essential  elements 
of  good  Catholic  citizenship,  and  in  every  form  and 
aspect  they  are  impressed  with  the  obligation  as  a 
religious  duty  to  render  unto  Caesar  the  things  which 
are  Csesar's  and  unto  God  the  things  which  are  God's 
and  to  be  ever  thankful  that  in  this  country  these  two 
separate  obligations  are  wholly  reconcilable. 

The  fundamental  and  controlling  reason  or  motive 
for  the  establishment  and  maintenance  of  parochial 
schools  is  the  profound  conviction  on  the  part  of  all 
Roman  Catholics,  in  which  conviction  clergy  and 
laity  are  a  unit,  that  the  welfare  of  the  state,  the 
stability  of  the  Union,  the  continuance  of  civil  and 
religious  freedom,  and  the  lasting  happiness  of  the 
individual  depend  upon  the  code  and  standards  of 
morality,  discipline,  self-restraint  and  temperance 
taught  by  religion.  The  student  of  history  well 
knows  that  social  order  and  civilized  society  have 
always  rested  upon  religion;  that  there  has  never 
been  a  civilized  nation  without  religion;  that  free 
government  has  never  long  endured  except  in  coun- 
tries where  some  religious  faith  has  prevailed,  and 
that  our  own  country  for  three  centuries  has  been 


CATHOLIC    PAROCHIAL    SCHOOLS         251 

an  essentially  religious  country,  by  which  I  mean 
that  the  great  majority  of  citizens  have  been  be- 
lievers in  God  and  in  some  Christian  religion.  When 
the  Constitution  of  the  United  States  was  estab- 
lished, the  Americans  were  a  truly  religious  people, 
and  as  a  whole  held  firmly  to  one  form  or  another 
of  Christian  faith.  It  has  been  recently  pointed 
out  by  Archbishop  Ireland  in  the  Cathedral  of  St. 
Paul  that  in  those  days,  "to  stay  away  from  religious 
service  on  Sunday  was  to  invoke  upon  one's  self 
serious  public  criticism."  It  is  quite  true  that  the 
great  majority  of  Americans  were  then  Protestants, 
but  they  were  a  religious  majority.  The  Catholics 
can  never  forget  that  they  owe  the  blessing  of  the 
religious  liberty  and  tolerance  which  they  now  en- 
joy to  a  generation  that  was  overwhelmingly  Prot- 
estant and  that  it  was  first  granted  at  an  epoch 
when  rehgious  liberty  and  tolerance  were  practically 
unknown  in  Europe,  whether  in  Cathohc  or  Protes- 
tant countries. 

Lord  Bryce  in  his  great  work  on  "The  American 
Commonwealth"  has  reviewed  the  influence  of  relig- 
ion in  this  country,  and  has  declared  that  "one  is 
startled  by  the  thought  of  what  might  befall  this 
huge  yet  dehcate  fabric  of  laws  and  commerce  and 
social  institutions  were  the  foundation  it  has  rested 
upon  to  crumble  away."  That  foundation  he  recog- 
nized to  be  religion,  and  he  admonished  us  that  "the 
more  democratic  republics  become,  the  more  the 
masses  grow  conscious  of  their  own  power,  the  more 
do  they  need  to  live,  not  only  by  patriotism,  but  by 


252         CATHOLIC    PAROCHIAL    SCHOOLS 

reverence  and  self-control,  and  the  more  essential  to 
their  well-being  are  those  sources  whence  reverence 
and  self-control  flow."^  Catholics  believe  that  those 
sources  of  reverence  and  self-control  are  to  be  found 
in  religion,  and  that  if  we  sow  in  irrehgion  we  shall 
reap  in  irreligion.  Hence  the  firm  and  uncompro- 
mising determination  of  Catholic  clergy  and  laity 
that  thorough  and  efficient  religious  instruction,  so 
far  as  lies  in  their  power,  shall  be  a  vital  and  es- 
sential element  in  the  education  of  every  American 
Catholic  child. 

I  very  much  doubt  whether  any  respectable  num- 
ber of  sensible  and  reflecting  American  citizens  in  our 
day  would  challenge  the  truth  that  morality  is  essen- 
tial to  the  maintenance  of  civilized  society  and  gov- 
ernment, that  the  greatest  influence  for  morality  is 
to  be  found  in  the  churches  of  the  various  denomi- 
nations tlu-oughout  the  country,  and  that  in  teaching 
morality  the  churches  are  rendering  a  patriotic  ser- 
vice and  promoting  the  best  interests  and  the  highest 
policy  of  the  state.  I  venture  to  assert  that  the 
only  reasonable  difi'erence  of  opinion  possible  among 
candid  and  just  men  is  as  to  the  best  way  of  incul- 
cating religion  in  the  young  and  the  extent  to  which 
religious  instruction  is  essential  as  a  part  of  the 
complete  education  of  children.  On  the  one  hand, 
there  are  those  who  conscientiously  assert  and  sin- 
cerely believe  that  their  children  can  receive  all  the 
religious  training  they  need  at  home  or  at  Sunday 
school  and  that  they  do  not  require  any  religious 

^  The  American  Commonwealth,  new  edition  (1912),  vol.  II,  pp.  798,  794. 


CATHOLIC    PAROCHIAL    SCHOOLS         253 

instruction  in  the  daily  schoolroom;  on  the  other 
hand,  there  are  those  who  conscientiously  assert  and 
sincerely  believe  that  religion  is  the  most  essential 
part  of  the  education  of  the  child  and  of  the  forming  of 
its  moral  character,  that  few  parents  have  the  time 
or  the  ability  to  teach  religion  to  their  children,  and 
that  religion  can  properly  be  taught  only  by  making  it 
part  and  parcel  of  the  early  schoolroom  and  of  every 
day's  instruction  and  study,  while  the  mind  and 
character  of  the  child  are  plastic.  The  latter  view  is 
that  of  Catholics  and  of  constantly  increasing  num- 
bers of  Protestants  who  send  their  children  Lo  private 
schools  in  which  the  doctrines  of  their  faith  are 
taught. 

In  the  Catholic  view,  the  influence  of  the  school 
upon  the  future  manhood  and  womanhood  and 
citizenship  of  the  country  cannot  be  over-estimated. 
The  school  is  the  nursery  where  the  mind  and  heart 
of  the  impressionable  child  are  moulded  into  endur- 
ing form;  the  subtle  influence  of  daily  religious  sur- 
roundings, including  example  and  suggestion  in  the 
classroom,  is  as  strong  and  pervading  as  it  is  difficult 
to  analyze;  the  lessons  of  the  primary  and  elemen- 
tary school  are  those  that  endure  and  in  time  domi- 
nate the  child's  mind;  and  the  visible  examples  of 
daily  discipline,  uniformity  of  ideals,  obedience,  self- 
control  and  disinterested  devotedness  to  Church  and 
country,  indeed  the  very  atmosphere  of  the  Catholic 
religious  school,  are  of  themselves  formative  and 
educative  elements.  It  is  the  classroom  that  is  the 
training  field  of  character  and  good  citizenship  —  of 


254         CATHOLIC    PAROCHIAL    SCHOOLS 

true  manhood  and  womanhood.  Yet  many  would 
wholly  exclude  and  banish  its  most  important  and 
essential  feature! 

Catholics  believe  that  religion  and  the  philosophy 
of  Christianity  are  not  to  be  taught  haphazard,  at 
odd  moments,  or  by  untrained  persons,  and  that  a 
firm  grasp  of  the  truths  of  the  Catholic  religion  —  or 
in  fact  of  any  religion  —  by  the  immature  minds  and 
hearts  of  children  cannot  be  secured  by  merely 
reciting  abstract  maxims  of  morality,  or  without 
constant  example  and  precept,  daily  lessons,  long 
training  and  thorough  drilling.  They  further  believe 
that,  except  in  rare  instances,  this  cannot  be  done  by 
home  instruction  or  by  attendance  at  Sunday  school 
once  a  week.  The  immense  sacrifices  that  Catholics 
have  made  and  are  making  all  over  the  country  ought 
to  demonstrate  how  sincere  is  their  conviction  upon 
this  point.  We  may  form  some  idea  of  the  extent  of 
this  sacrifice  from  this  building  and  from  the  fact  that 
the  assessed  valuation  of  the  Catholic  parochial  schools 
in  the  city  of  New  York  is  now  over  $3o,ooo,ooo. 

The  story  of  the  heroic  struggles  and  sacrifices  of 
Catholics  in  order  to  maintain  their  system  of 
schools  for  the  education  of  their  children  ought  to 
be  known  to  every  American  Catholic,  for  it  is  the 
most  thrilling  and  inspiring  page  in  the  history  of 
their  church.  The  time  remaining  to  me  will  per- 
mit only  a  brief  review  of  the  results  accomplished. 
It  is  an  accomplishment  of  which  Catholics  may 
justly  feel  proud. 

The  greatest  single  religious  fact  in  the  United 


CATHOLIC    PAROCHIAL    SCHOOLS         255 

States  to-day  is  undoubtedly  the  Catholic  school 
system  maintained  by  private  individuals.  The 
Catholic  parish  schools  now  number  over  5,ooo,  and 
the  academies  and  colleges  over  goo,  with  over 
i,5oo,ooo  pupils  in  attendance  at  these  schools 
and  colleges.  More  than  20,000  Catholic  men  and 
women  unselfishly  devote  their  lives  to  the  work 
of  teacliing  in  these  schools,  academies  and  colleges. 
The  system  is  crowned  by  a  great  Catholic  univer- 
sity at  Washington  with  an  attendance  of  nearly 
i,5oo.  This  vast  educational  organization  is  main- 
tained at  a  yearly  cost  of  millions  of  dollars  without 
any  public  aid  whatever,  except  the  exemption  of 
school  property  from  ordinary  taxation.  The  effi- 
ciency of  the  Catholic  schools  and  colleges  has  long 
been  demonstrated  by  examinations  and  practical 
results,  and  it  is  at  last  generally  conceded.  The 
Cathohc  schools  teach  everything  that  is  taught  in 
the  public  schools  and,  in  addition,  they  teach  re- 
ligion and  religious  morality.  The  standards  of 
education  in  all  secular  branches  are  equal  and 
in  many  instances  superior  to  those  of  the  neigh- 
borhood public  or  private  schools.  In  other  words, 
Catholic  children  are  as  well  educated  in  the 
Catholic  schools  as  in  the  public  schools;  they  come 
from  them  as  well  trained  and  as  patriotic  as  the 
children  coming  from  any  other  schools,  and  in 
addition  they  are  thorouglily  grounded  in  the  doc- 
trines of  their  great  religion.  I  say  "great"  because 
it  is  the  great  religion  of  all  Christendom  as  well  as 
of  this   country.      When    the   Constitution   of   the 


256         CATHOLIC    PAROCHIAL    SCHOOLS 

United  States  was  framed  at  the  Pliiladelphia  con- 
vention of  1787,  there  were  only  about  25,ooo  avowed 
CathoHcs  in  the  whole  Union.  To-day  they  number 
17,000,000.  More  than  one-third  of  all  who  now 
attend  Christian  churches  in  the  United  States  are 
Roman  Catholics.  The  Catholic  Church  has  several 
times  as  many  members  as  any  other  religious  de- 
nomination. The  figures  in  the  state  of  New  York 
show  that  about  65  per  cent.,  nearly  two-tliirds,  of  all 
regular  attendants  at  Christian  churches,  are  Roman 
Catholics,  and  that  the  remaining  attendants  are 
divided  among  many  separate  Protestant  denomina- 
tions. Hence  the  correctness  of  the  assertion  that 
the  Catholic  religion  is  the  great  religion  of  this 
country. 

It  is  true  and  should  be  added  that  Catholics 
hope  that  the  day  will  come  when  the  people  of 
all  denominations  will  more  adequately  appreciate 
the  fact  that  religious  instruction  tends  to  pro- 
mote the  best  and  the  most  loyal  citizenship,  that 
the  Catholic  parochial  schools  are,  therefore,  render- 
ing a  public  service,  and  that  as  such  they  should  be 
allotted  a  reasonable  part  of  the  public  educational 
fund  raised  from  general  taxation,  measured  by  and 
limited  to  the  actual  saving  to  that  fund,  provided 
also  that  a  required  standard  of  education  be  main- 
tained. In  England,  for  example,  the  Catholic  paro- 
chial schools  receive  grants  of  public  moneys  if  they 
fulfil  certain  conditions  of  efficiency  in  secular  instruc- 
tion, staff  qualification  and  equipment,  and  the  extent 
of  these  grants  is  approximately  the  actual  saving 


CATHOLIC    PAROCHIAL    SCHOOLS         257 

to  the  public  fund.  In  the  Cathohc  diocese  of  Long 
Island,  in  which  we  live,  there  are  now  over  68,000 
children  being  educated  in  the  Catholic  schools  and 
colleges,  and  in  Greater  New  York  there  are  more 
than  i3o,ooo  children  attending  the  parochial  schools. 
All  these  children  would  have  to  be  educated  in  the 
pubhc  schools  and  at  the  expense  of  the  taxpayers 
if  the  Cathohc  schools  did  not  educate  them,  and  this 
Catholic  education  involves  an  immense  direct  sav- 
ing to  the  public  school  fund.  Statistics  recently  sub- 
mitted to  the  Constitutional  Convention  sitting  at 
Albany  showed  that  the  immediate  saving  to  the 
city  of  New  York  alone  from  the  parochial  schools 
was  fully  $7,5oo,ooo  per  annum,  and  that  not  one 
penny  of  this  saving  was  being  contributed  by  the 
city  or  the  state  to  the  cost  of  educating  and  train- 
ing these  Catholic  children.  Consequently,  it  is 
not  unreasonable  to  believe  that  justice  and  toler- 
ance will  finally  prevail,  and  that  the  day  will  come 
when  it  will  be  recognized  as  equitable  and  as  a  wise 
and  enlightened  pubhc  pohcy  to  provide  that  when- 
ever any  denomination,  whether  Catholic,  Protestant, 
or  Jewish,  is,  in  addition  to  giving  religious  instruc- 
tion, educating  and  training  large  numbers  of  children 
according  to  satisfactory  secular  standards  and 
tests,  and  is  thereby  relieving  the  public  educational 
fund,  every  such  denominational  school  should  be 
granted  out  of  the  public  funds  some  part  of  the 
actual  saving  so  made,  because  it  is  rendering  a 
public  service.  A  basis  of  adjustment  will,  I  am 
confident,  be  ultimately  worked  out,  which  will  be 


258         CATHOLIC    PAROCHIAL    SCHOOLS 

fair  and  just  to  all  denominations.  But  in  the  mean- 
time the  private  schools  where  both  secular  and 
religious  training  are  given  to  children,  including 
the  Catholic  parochial  schools,  must  continue  to  be 
erected,  equipped  and  supported  wholly  by  the 
members  of  the  various  denominations.  There  are 
now  numerous  Protestant  private  schools  where  the 
Protestant  faith  is  being  taught;  and  what  is  true 
of  the  Catholic  parochial  schools  is  also  true  of  the 
Protestant  schools. 

We  are  all  so  accustomed  to  the  blessings  of  abso- 
lute religious  liberty  that  we  really  find  it  difficult 
to  imagine  that  any  other  condition  could  ever  have 
been  tolerated  in  the  free  air  of  America,  and  we  are 
very  apt  to  overlook  or  minimize  the  value  of  the 
most  precious  privilege  we  enjoy.  Yet,  it  is  only  a 
few  generations  since  religious  intolerance  prevailed 
in  the  United  States  and  Catholics  were  mercilessly 
and  barbarously  persecuted.  The  first  constitution 
of  the  state  of  New  York  in  1777  discriminated 
against  Catholics  by  permitting  only  Protestants  to 
become  citizens  of  the  state,  and  this  was  done  not- 
withstanding the  fact  that  the  Continental  Congress 
had  tliree  years  before  entreated  the  states  to  bury 
religious  intolerance  forever  in  oblivion.  At  one 
time  in  the  colony  of  New  York  Catholic  priests 
were  hunted  as  criminals,  were  condemned  to  per- 
petual imprisonment  if  apprehended,  and  were  to 
suffer  the  death  penalty  if  they  broke  prison  and 
were  retaken.  Catholics  could  not  hold  civil  or  mili- 
tary positions,  and  could  not  even  worship  God  ac- 


CATHOLIC    PAROCHIAL    SCHOOLS         259 

cording  to  their  faith  without  becoming  criminals 
and  Hable  to  imprisonment.  The  only  period  of  full 
religious  tolerance  and  Uberty  in  our  colonial  history 
was  for  a  short  time  during  the  term  of  Governor 
Dongan,  who  was  a  Roman  CathoUc. 

All  this  intolerance  has  happily  passed  away  never 
to  return,  and  religious  liberty  is  now  firmly  estab- 
hshed.  I  recall  the  past  only  in  order  to  impress 
upon  your  minds  that  we  should  treasure  this  bless- 
ing and  be  ever  grateful  to  the  generation  of  Amer- 
icans, overwhelmingly  Protestant,  which  gave  us 
religious  freedom  and  in  doing  so  went  far  toward 
atoning  for  the  past  persecution  of  Catholics. 

In  conclusion,  I  must  add  that  we  Catholics  of  the 
Parish  of  St.  Patrick  of  Glen  Cove  should  acclaim 
our  appreciation  of  the  great  service  and  unselfish 
devotion  of  the  one  person  whose  whole-hearted 
energy  has  made  this  school  possible  and  without 
whose  example  we  should  despair  of  maintaining  it. 
Long  may  this  beautiful  building  endure  as  a  splendid 
monument  to  the  faith  and  patriotism  of  a  Catholic 
priest,  our  beloved  pastor,  Bernard  O'Reilly.  We 
must  also  voice  our  cordial  welcome  and  pledge  of 
support  to  the  Sisters  of  Notre  Dame,  worthy  mem- 
bers of  a  great  American  Catholic  sisterhood  de- 
voted to  the  education  of  children,  who  are  now 
about  to  take  up  among  us  the  task  of  teaching  our 
children.  They  will  labor  week  after  week  and  year 
after  year,  devotedly  and  unselfislily,  for  a  pittance 
barely  sufficient  to  supply  their  absolute  physical 
needs,  with  little  or  no  expectation  of  public  recog- 


260         CATHOLIC    PAROCHIAL    SCHOOLS 

nilion.  They  will  seek  and  find  their  reward  solely  in 
the  inward  satisfaction  of  the  day's  work  and  duty 
well  done  and  in  the  inspu-ing  and  quickening  maxim 
of  then-  order  and  of  their  whole  daily  hfe  that  their 
holy  task  is  ever 

Pro  Deo  et  Ecclesia  et  Patria. 


THE  FRANCE-AMERICA  COMMITTEE  OF 

NEW  YORK^ 

I  ASK  you,  Gentlemen,  to  rise  and  lift  your  glasses 
high  to  the  joint  toast  of  his  Excellency  the  Presi- 
dent of  the  United  States,  his  Excellency  the  President 
of  the  Republic  of  France  and  his  Majesty  the  King 
of  England. 

I  ask  you  again  to  rise  and  lift  your  glasses  high 
to  the  joint  toast  of  the  other  Allies:  to  his  Majesty 
the  King  of  the  Relgians,  whose  valiant  and  heroic 
people  have  suffered  frightfully  and  have  again 
shown,  as  Caesar  taught  us,  that  "  horum  omnium 
fortissimi  sunt  Belgae;''  to  his  Imperial  Majesty 
the  Czar  of  all  the  Russias,  whose  brave  soldiers 
have  stood  so  much  of  the  brunt  of  the  battle  and 
paid  such  an  awful  toll,  and  to  his  Majesty  the  King 
of  Italy,  and  his  courageous  army  and  navy,  whose 
help  may  yet  prove  decisive. 

As  the  permanent  object  of  the  France- America 
Committee,  which  was  organized  long  before  the  pres- 
ent war,  is  to  perpetuate  the  traditions  and  bonds  of 
friendship  which  bind  the  governments  and  peoples 
of  France  and   America  together,   our  guests  will 

1  Remarks  as  presidinf^  ofTicer  at  a  luncheon  given  in  honor  of  I  he 
members  of  the  Anglo-French  Cretlit  and  Finance  Commission,  at  the 
Hotel  Knickerbocker,  New  York,  October  i,  i<)i5. 


262  FRANCE-AMERICA    COMMITTEE 

readily  appreciate  why  France  should  seem,  at  the 
moment,  to  be  foremost  in  our  thoughts. 

Monsieur  Homberg,  Monsieur  Mallet:  Le  Comite 
France-Amerique  de  New  York  eprouve  un  tres 
vif  plaisir  a  saluer  en  vous  les  delegues  de  la 
Republique  Frangaise.  Le  Comite  tient  a  vous 
temoigner  F  ami  tie  des  Americains  pour  la  France, 
notre  admiration  de  I'heroisme  que  le  peuple  frangais 
de  toutes  classes  a  montre  pendant  I'annee  affreuse 
qui  vient  de  s'ecouler,  nos  ardentes  sympathies  pour 
vos  souffrances,  et  nos  souhaits  pour  votre  avenir. 

Notre  hospitalite  est  malheureusement  impregnee 
d'une  tristesse  poignante,  car  un  souci  de  tons  les 
instants  ne  nous  permet  pas  d'oublier  la  guerre 
brutale  et  feroce  qui  a  devaste  une  grande  partie  de 
la  France  et  presque  toute  la  Belgique,  et  qui  menace 
non  seulement  les  libertes  des  peuples  frangais  et 
beige,  mais  la  civilisation  de  toute  I'Europe.  II  est 
vrai  que  notre  gouvernement  national,  pour  des 
raisons  d'etat,  se  trouve  force  de  maintenir  une 
neutralite  legale,  tache  si  difficile  et  si  complexe, 
mais  le  peuple  americain  ne  saurait  etre  indifferent 
aux  malheurs  et  aux  detresses  des  Frangais.  Un 
grand  Americain  a  bien  dit  que  c'est  en  apprenant 
I'histoire  de  son  pays  que  I'enfant  americain  ap- 
prend  a  aimer  la  France.  Nous  ne  pourrions  jamais 
oublier  I'aide  genereuse,  la  sympathie,  le  devouement, 
et  le  desinteressement  que  le  peuple  frangais  nous  a 
temoignes  au  debut  de  notre  histoire.  Le  souvenir, 
Messieurs,  en  est  ineffagable.  Innombrables  sont  mes 
compatriotes  qui  prient  de  tout  coeur  qu'une  nou- 


FRANCE-AMERICA    COMMITTEE  263 

velle  Bataille  de  Poitiers  contre  les  Sarrasins  delivre 
bientot  la  belle  et  sainte  terre  de  France  de  ses 
envaliisseiirs. 

Le  service  que  la  France  a  rendu  aux  Etats-Unis 
est  souvent  meconnu  et  quelquefois  oublie.  L'heure 
est  venue  de  refuter  et  les  denigrements  et  les  preju- 
ges.  Le  Comite  France- Amerique  voudrait  saisir  cette 
occasion  pour  rappeler  liautement  ce  que  nous  devons 
a  la  France  et  exprimer  la  reconnaissance  profonde  que 
le  peuple  americain  ressent  envers  le  peuple  frangais. 

La  plupart  des  historiens,  cherchant  leurs  materi- 
aux  dans  les  arcliives  des  gouvernements  et  dans 
les  notes  des  rois  et  de  leurs  ministres,  ne  voient  trop 
souvent  qu'un  calcul  ou  un  motif  interesse  dans 
I'aide  que  la  France  nous  a  apportee  et  dans  I'amitie 
qu'elle  nous  a  temoignee  pendant  notre  Guerre  d'ln- 
dependance.  Mais  ceux  qui  cherchent  conscien- 
cieusement  a  penetrer  jusqu'a  I'ame  du  peuple  fran- 
gais  pendant  les  annecs  de  1776  a  1781,  comme  I'avait 
fait  I'historien  Americain,  James  Breck  Perkins,  feu 
le  president  du  Comite  des  Affaires  Etrangeres  de 
notre  Congres  National,  attestent  que  cette  aide, 
qui  fut  si  efficace  et  qui  seulc  a  rendu  notre  succes 
possible,  etait  desinteressee  et  n'etait  inspiree  que 
par  sympathie  pour  un  peuple  faible  et  par  amour 
pour  la  liberte  et  la  justice  politique.  La  Fayette, 
I'ami  intime  et  devoue  de  Washington  et  de  Franklin, 
etait  veritablement  I'incarnation  du  sentiment  d'en- 
thousiasme  exalte  et  de  sympathie  ardente  que  les 
Frangais  ressentaient  alors  dans  toutes  les  classes 
pour  un  peuple  qui  voulait  etre  libre.     Sans  doute 


264  FRANCE- AM  ERICA    COMMITTEE 

Louis  XVI.  et  Vergennes  y  voyaient  des  avantages 
incidentels  et  des  raisons  d'etat,  mais  c'etait  bien  le 
peuple  impatient  et  Fenthousiasme  et  le  sentiment 
public  de  la  nation  entiere  qui  ont  finalement  force 
le  gouvernement  du  Roi  a  nous  envoyer  une  armee 
disciplinee  sous  Rochambeau  et  une  flotte  de  guerre 
sous  d'Estaing  et  de  Grasse.  L'importance  incal- 
culable du  service  rendu  par  les  Frangais  peut  etre 
estimee  en  nous  rappelant  que  les  deux  tiers  et  les 
mieux  equipees  des  troupes  alliees  a  Yorktown 
etaient  frangais,  et  que  ce  fut  a  Rochambeau  que  le 
commandant  anglais  avait  cru  devoir  rendre  son  epee. 
En  prenant  part  a  notre  Guerre  d'Independance, 
le  peuple  frangais  savait  parfaitement  que  son  aide 
lui  couterait  un  prix  enorme  et  que  les  impots  deja 
trop  lourds  devraient  etre  encore  augmentes.  L'liis- 
torien  Perkins  declare  que  le  montant  des  depenses 
de  la  France  pour  liberer  I'Amerique  s'est  eleve  a  sept 
cent  soixante  douze  millions  de  dollars,  c'est  a  dire, 
a  plus  de  trois  milliards  huit  cent  millions  de  francs.^ 
De  cette  enorme  depense,  qui  a  ruine  le  tresor 
royal,  comme  I'avait  bien  predit  Turgot,  pas  un  sou 

^  France  in  the  American  Revolution,  p.  498;  see  also  the  intro- 
duction by  Ambassador  Jusserand,  p.  xv.  The  accuracy  of  these  figures 
has  not  been  independently  verified.  An  examination  of  the  late  Mr. 
Perkins'  papers  does  not  disclose  the  source  of  his  statement.  The  French 
archives  show  a  direct  expenditure  of  i,5o7,5oo,ooo  livres,  but  these 
figures  do  not  include  payments  made  in  and  after  the  year  1788. 
Professor  Marion  of  the  College  de  France  is  of  opinion  that  the  total 
expenditure  probably  reached  2,000,000,000  livres.  Marion,  Histoire 
Financiere  de  la  France,  1715-1789,  vol.  I,  p.  3o3,  Paris,  igi/J;  see  also 
Gomel,  Les  Causes  F inancieres  de  la  Revolution  Frangaise,  vol.  II,  p.  36, 
Paris,  1893.  Fiske,  in  his  Critical  Period,  p.  35,  states  the  expenditure 
to  have  been  1,400,000,000  francs. 


FRANCE-AMERICA    COMMITTEE  265 

n'a  ete  rembourse  a  la  France.  EUe  ne  I'a  jamais 
reclame,  et  elle  en  refuserait  fierement  aujourd'hui 
le  remboursement  en  nous  rappelant  qu'elle  avait 
stipule  dans  le  traite  d'alliance  avec  les  Etats-Unis 
d'Amerique  du  6  Fevricr,  1778,  qu'elle  ne  recevrait 
aucune  indemnite  pour  sa  cooperation  et  ses  sacrifices, 
et  que  meme  si  le  Canada  etait  conquis,  cette  contree 
serait  annexee  aux  Etats-Unis  et  non  pas  retournee 
a  la  France.  Ce  traite,  sans  precedent  en  generosite 
dans  I'histoire  du  monde,  etait  le  premier  de  tons  les 
traites  que  les  Etats-Unis  ont  faits  et  le  seul  traite 
d'alliance  dans  notre  histoire. 

Ne  serait-il  pas  souverainement  juste,  si  le  peuple 
americain,  cent  trente  quatre  ans  apres  la  bataille 
de  Yorktown,  reconnaissait  ce  service  —  je  me  refuse 
a  I'appeler  dette  —  en  offrant  au  peuple  frangais  un 
credit  commercial  du  principal,  c'est  a  dire,  sept 
cent  soixante  douze  millions,  remboursable  quand  la 
France  le  pourrait?  Meme  en  francs,  ce  ne  serait 
que  I'equivalent  d'une  contribution  insignifiante 
par  cliaque  citoyen  des  Etats-Unis,  et  bien  moins 
en  valeur  que  I'impot  qui  a  ete  paye  volontaire- 
ment  et  de  bon  coeur  par  le  peuple  frangais  du  dix- 
huitieme  siccle  pour  nous  aider.  Quelle  noblesse, 
quelle  gloire,  quelle  splendeur  de  coeur,  d'ame  et 
d'esprit  si  les  grands  banquiers  americains  avaient 
pu  proclamer  au  monde  qu'ils  avaient  eux-memes 
offert  le  credit  en  reconnaissance  du  passe!  Nous 
serious  vraiment  fiers  de  notre  generation  si  elle 
pouvait  ecrire  une  page  aussi  sublime,  aussi  imperis- 
sable  dans  I'histoire  du  monde.     Alors,  Messieurs, 


266  FRANCE-AMERICA    COMMITTEE 

nul  doute  ne  subsisterait  quant  au  succes  eclatant  de 
votre  mission,  surtout  si  une  parole  eloquente  pouvait 
toucher  le  coeur  des  Americains  et  leur  rappeler  com- 
bien  ils  doivent  a  la  France,  a  cette  republique  soeur 
et  souffrante,  et  combien  la  question  aujourd'hui  n'est 
pas  seulement  une  affaire  commerciale  pour  notre 
propre  profit  avec  nos  meilleurs  clients,  mais  aussi 
une  question  de  gratitude  pour  un  ami  loyal  et 
devoue  et  de  sympathie  effective  pour  un  grand  et 
noble  peuple  qui  souffre. 

Au  nom  de  cette  reconnaissance  et  de  cette  sym- 
pathie americaines  que  j'ai  essaye  d'exprimer  en 
interpretant,  j'en  suis  convaincu,  la  pensee  de  tons 
les  Americains  reunis  ici,  je  leve  mon  verre  en  I'hon- 
neur  de  la  Republique  Frangaise,  de  la  France  blessee 
mais  si  vivante,  si  courageuse,  si  valiante,  et  de  ses 
representants  distingues  qui  nous  honorent  de  leur  pre- 
sence, M.  Octave  Romberg  et  M.  Ernest  Mallet.  Mes- 
sieurs, j'ai  I'honneur  de  vous  presenter  M.  Homberg.^ 

My  Lord  Chief  Justice  of  England  and  Gentlemen 
of  the  British  Commission:  After  the  eloquent 
tributes  of  last  night  at  the  Pilgrims,  I  find  it  ex- 
tremely difficult  to  express  and  convey  to  you  the  full 
import  and  sincerity  of  our  welcome. 

Every  tie  that  can  bind  one  people  to  another 
binds  the  American  people  to  the  English.  Most  of 
us  are  of  the  Anglo-Saxon  race  and  have  the  same 
blood  coursing  through  our  veins.  To  the  great 
majority  of  Americans,  England  has  ever  been  the 

1  M.  Homberg  replied  in  French,  and  Mr.  Guthrie  then  continued  as 
above. 


FRANCE-\MERICA    COMMITTEE  267 

mother  country.  We  speak  the  same  language,  read 
the  same  Hterature,  strive  for  the  same  ideals,  are 
governed  by  the  same  principles  of  politics  and  juris- 
prudence, and  entertain  the  same  fundamental  con- 
ceptions of  right  and  wrong  and  justice  as  among 
men  and  among  nations.  The  greater  part  of  Eng- 
land's history  is  our  history;  her  Magna  Carta  is 
our  Magna  Carta,  and  the  immortal  deeds  of  valor 
of  the  English,  Scotch,  Irish  and  Welsh  are  our  heri- 
tage and  the  source  of  our  inspiration.  Our  hearts, 
therefore,  cannot  but  beat  faster  day  after  day  as  we 
read  of  the  splendid  heroism  and  noble  self-sacrifice 
of  your  great  race. 

To  our  minds  the  noblest  and  the  most  truly  glorious 
page  in  the  history  of  England  was  written  by  Sir 
Edward  Grey  when,  on  behalf  of  your  government, 
my  Lord,  he  refused  to  break  the  plighted  faith  of  Eng- 
land to  avoid  involving  his  country  in  the  greatest  and 
most  disastrous  war  in  the  history  of  the  world,  a  war 
for  which  England  was  not  prepared,  for  which  Sir 
Edward  and  his  colleagues  knew  she  was  not  prepared, 
and  which  tlireatened  and  might  involve  the  ruin  of 
the  British  Empire.  There  is  a  nobility  and  sublimity, 
inexpressible  by  mere  words,  in  the  act  of  sending 
that  small  but  now  immortal  British  army  to  Belgium 
in  August  of  last  year,  to  face  tenfold  its  number,  to 
die  for  strangers  —  for  a  mere  "scrap  of  paper,"  as  a 
treaty  was  cynically  and  immorally  called  —  solely 
that  the  honor  of  England  might  be  kept  inviolate. 
England  has  never  been  grander  or  nobler  than 
on   that   day.     The  glory  she  then  gained  cannot 


268  FRANCE-AMERICA    COMMITTEE 

fade.  Gentlemen,  the  Anglo-Saxon  race  never  rose 
to  higher  renown  than  when  the  British  statesmen 
of  to-day  showed  on  such  a  grand  scale  that  the  spirit 
of  the  Light  Brigade  at  Balaclava  still  lives: 

"Their's  not  to  reason  why, 
Their's  but  to  do  and  die." 

And  we  Americans  were  then  prouder  than  ever 
before  to  belong  to  the  Anglo-Saxon  race. 

England  may  prevail  in  this  war,  or  she  may  fail. 
But  whatever  may  happen,  whatever  may  be  de- 
creed by  Providence,  your  magnificent  and  unselfish 
heroism  in  springing  to  the  defense  of  Belgium  has 
added  to  England's  renown  and  to  our  race  a  glory 
which  is  priceless  and  infinitely  beyond  the  whole 
cost  of  the  war,  a  glory  worth  dying  for,  a  glory  that 
will  tlu^ill  and  uplift  generations  of  men  for  all  time, 
a  glory  that  will  ever  inspire  acts  of  patriotic  service 
and  valorous  self-sacrifice,  of  chivalry  and  honor. 

Although,  Gentlemen  of  the  British  Commission, 
the  deep  sympathy  of  the  great  majority  of  Ameri- 
cans is  naturally  with  the  Allies  in  the  present  war, 
we  want  you  to  return  to  England  appreciating  why 
we  must  loyally  support  the  neutrality  which  the 
President  of  the  United  States  has  proclaimed.  The 
policy  of  this  country  in  regard  to  European  wars  was 
fixed  in  1 798.  One  of  the  most  important  and  enduring 
of  the  many  services  that  President  Washington  ren- 
dered to  the  United  States  was  when  he  stood  firm  as 
a  rock  against  the  abuse  and  clamor  of  that  day  in  up- 
holding and  enforcing  neutrality  in  favor  of  England 
as  against  the  demands  of  her  then  enemies.  We  have 


FRANCE-AMERICA    COMMITTEE  269 

consistently  adhered  to  that  principle  for  more  than 
one  hundred  and  twenty  years.  It  has  been  our 
fixed  and  constant  policy,  not  a  football  of  politics, 
or  of  newspaper  propaganda,  or  of  temporary  emo- 
tion or  expediency,  but  the  sober  judgment  and  con- 
science of  the  nation.  The  essence  of  this  policy  is 
that  it  is  the  duty  of  our  government,  not  only  to  the 
present  but  to  future  generations,  to  avoid  being 
drawn  into  European  wars  unless  our  honor  or  our 
vital  interests  become  involved.  During  more  than 
a  century  we  have  invited  the  inhabitants  of  every 
nation  of  Europe  to  come  here  and  become  a  part  of 
our  country,  and  we  have  impliedly  assured  them  of 
our  adherence  to  this  traditional  policy  of  neutrality. 
If,  now,  we  also  should  draw  the  sword,  out  of 
heartfelt  sympathy  and  friendship  for  the  Allies,  or 
in  indignation  at  the  outrage  of  the  violation  of  Bel- 
gium, we  might  become  hereafter  constantly  involved 
in  European  conflicts  in  which  we  should  have  no 
other  than  a  humanitarian  interest,  and  as  a  result 
fmd  the  devoted  friends  and  relatives  of  to-day  the 
inflamed  and  bitter  enemies  of  to-morrow. 

My  Lord  and  Gentlemen  of  the  British  Com- 
mission, we  want  you  to  return  to  England  realizing 
how  difficult  and  complex  is  the  task  of  our  Presi- 
dent. Under  our  system  of  government,  he  alone 
can  speak  for  the  nation  and  commit  us  in  our 
foreign  relations,  upon  him  alone  is  imposed  the 
awful  burden  of  responsibility  and  duty,  and  pa- 
triotism commands  us  as  Americans  loyally  to 
support    him,    whatever    may    be    our    individual 


270  FRANCE-AMERICA    COMMITTEE 

opinions  or  sentiments  as  to  particular  measures  or 
grave  omissions.  We  want  you  to  return  profoundly 
convinced  that  in  standing  by  our  policy  of  neutral- 
ity, we  are  not  indifferent,  or  callous,  or  pusillani- 
mous, or  mercenary;  and  that  our  President  is 
striving  on  our  behalf  to  do  what  is  right  as  God 
gives  him  to  see  the  right,  not  only  by  the  Americans 
now  living  but  by  those  future  generations  for 
whom  we  are  the  trustees.  Above  all,  we  want 
you  to  return  to  England  firmly  believing  that  we 
unqualifiedly  approve  and  extol  the  noble  and  heroic 
action  of  England  in  drawing  her  sword  in  defense 
of  Belgium,  and  that  our  heartfelt  sympathy  and 
good  wishes  are  with  you  and  your  heroic  sailors 
and  soldiers  at  the  front. 

Gentlemen,  I  ask  you  to  rise  and  Hft  your  glasses 
high  and  drain  them  in  honor  of  the  distinguished 
representatives  of  England.  I  have  the  pleasure  of 
presenting  to  you  the  Right  Honourable  Lord 
Reading,  the  Lord  Chief  Justice  of  England. 


INDEX 


American  ideals,  37  161,  267. 
Ancestor-worship,  27-29. 
Anglo-French  Commission,  261. 
Anson,  Sir  William  R.,  104,  106. 
Aristotle,  14. 
Athens,  42. 
Australia,  81. 
Ayers,  In  re,  118. 

Bakers  case,  57,  153. 

Bancroft,  George,  30. 

Bankers,  Case  of  the,  106. 

Bar,  should  defend  the  courts 
against  criticism,  70,  127,  147, 
158;  duty  to  defend  constitu- 
tional guaranties,  85,  86;  efforts 
to  secure  proper  judicial  nomina- 
tions, 139-141;  professional  re- 
sponsibility, 142-143. 

Barons,  Articles  of  the,  5. 

Bate's  case,  17. 

Belgium,  261,  262,  267,  270. 

Bill  of  Rights,  New  York  statute 
of  1787, 19, 23;  permanent  nature, 
20,  21,  203;  the  federal  bill  of 
rights,  74,  83;  must  be  enforced 
by  the  courts,  77-78;  ineffective 
where  legislative  power  is  su- 
preme, 77-78.  iSee  Constitutions 
and  Constitutional  limitations. 

Rlackstone,  Sir  WiUiam,  99,  168. 

Bonham's  case,  10. 

Bosses,  Political,  their  power  in- 
creased by  direct  primaries,  142, 
236,    238;    efforts    to    overthrow 


them,    230-231,    245;    Woodrow 

Wilson  on,  242. 
Bracton,  Henry  de,  102. 
Bradford,  WiUiam,  30n,  38-39. 
Bryan,   WiUiam  J.,   180-182,  213- 

215. 
Bryce,  Viscount,  69,  251. 

Carlisle  vs.  United  States,  101. 

Charter,  see  Constitutions  and 
Magna  Carta. 

Chisholm  vs.  Georgia,  89,  95. 

Church  and  State,  Separation  of, 
germ  of  idea  in  Magna  Carta, 
11,  12;  an  American  political 
principle,  12;  opposed  by  Puri- 
tans, 32,  33;  accomplished  by 
the  Pilgrims,  32,  34. 

Clark  vs.  Barnard,  96. 

Class  legislation,  may  lead  England 
to  restrain  temporary  majorities, 
11;  masking  as  social  reform,  43; 
dangers  of,  74,  79,  85,  124;  New 
York  tenement  law  of  1884,  85; 
involved  in  graduated  taxation, 
165,  166. 

Cleveland,  Grover,  149,  151,  216. 

Cohens  vs.  Virginia,  93. 

Coke,  Sir  Edward,  23,  105. 

Common  law,  sUent  as  to  the  equal 
protection  of  the  laws,  36;  may 
be  changed  by  the  legislature, 
68-69,  134-138,  155;  the  birth- 
right of  Americans,  98;  soundness 
of  common-law  rules,   132-131. 


272 


INDEX 


Commune  consilium,  antecedent  of 
parliament,  16;  power  to  impose 
taxes,  16. 

Communism,  a  conceit  of  Plato's, 
38;  failure  of  the  experiment  in 
Plymouth  colony,  37-39;  in  the 
colony  of  Virginia,  38. 

Congress,  decay  through  increase 
of  executive  power,  44;  power 
to  regulate  interstate  commerce, 
61;  cannot  regulate  internal 
affairs  of  the  several  states,  61; 
acts  of,  61,  62,  68,  100,  121,  126; 
limitations  upon,  74,  78,  81, 
169-171;  proposes  amendments 
to  the  Constitution,  74,  89;  at- 
tempts to  curtail  the  federal 
courts,  88,  125;  duty  to  enforce 
constitutional  amendments,  110; 
duty  to  uphold  the  Constitution, 
171-172;  protection  of  American 
industries  and  wages,  193-197; 
dissatisfaction  with,  205-206. 

ConsoUdated  Gas  Co.  case,  122. 

Cooley,  Thomas  M.,  90,  161-162. 

Constitutions,  principles  rooted  in 
Magna  Carta,  1;  intended  to 
endure  forever,  20,  21,  203;  un- 
wise to  create  political  body  to 
enforce,  25;  may  be  deprived  of 
practical  force  by  failure  to  ob- 
serve constitutional  restraints, 
46,  75;  explanation  would  dispel 
prejudice  against  the  courts,  48; 
nature  and  purpose  to  declare 
general  principles,  52;  a  rule  of 
interpretation,  154-155;  anti- 
quated in  the  view  of  modern 
iconoclasts,  202;  small  vote  on 
amendments,  208-209;  should 
deal  only  with  fundamentals,  224, 
225.  ^ee  Magna  Carta  and  May- 
flower Compact. 


Constitution,  Federal,  sources  of,  1, 
31,  98;  enforced  by  the  courts, 
25,  42  sqq.,  70  sqq.,  87  sqq., 
109  sqq.;  supremacy  of,  71  sqq., 
87,  111,  113;  considered  and  rati- 
fied, 74,  88,  89;  easily  amended, 
82-85,  89,  91-92,  175,  176,  208; 
necessity  for  deliberation  in 
amending,  84-85,  176-177;  rule 
for  construing,  97-98;  oath  to 
support,  171-172;  attempts  to 
circumvent,  175;  embodies  eter- 
nal truths,  203.  .See  Constitu- 
tional limitations. 

Constitutional  government,  de- 
pends upon  constitutional  moral- 
ity, 26;  its  debt  to  the  Pilgrims, 
29,  32,  35;  characterized  by 
equality  before  the  law,  35. 

Constitutional  limitations,  idea  in 
Magna  Carta,  6-7;  recognized 
in  statute  of  42  Edward  III.,  7, 
8;  common  to  every  American 
constitution,  8,  73;  not  imposed 
upon  parhament,  9-11,  76-77, 
107;  their  enforcement  left  to 
the  courts,  25,  45,  47,  70  sqq., 
87,  109,  113,  127;  growing  im- 
patience with,  42,  43,  48,  124, 
202;  could  be  nullified  if  judges 
followed  the  prevaihng  morality, 
45,  46;  enforcement  by  the  court? 
necessary,  70  sqq. ;  binding  upon 
Congress,  74r-75,  171-172;  Elihu 
Root  on,  75;  make  possible  con- 
stitutional morality,  86;  to  be 
observed  by  the  President,  171- 
172.  iSee  Constitutions,  Due  proc- 
ess of  law.  Constitutional  moral- 
ity. Judiciary,  and  Fundamental 
laws. 

Constitutional  morality,  a  condi- 
tion  of    permanent  free  govern- 


INDEX 


273 


menl,  26,  42;  discussed  generally, 
42-86;  growing  tendency  to  dis- 
regard, 42;  its  disregard  caused 
the  overthrow  of  Grecian  democ- 
racy, 42;  its  essence  is  self- 
imposed  restraint,  42;  its  neces- 
sity should  be  taught,  48,  85-86. 

Conventions,  Constitutional,  their 
duty  to  secure  the  privileges  of 
Magna  Carta,  2;  the  first  Ameri- 
can, 29-30,  37;  Ohio  conven- 
tion of  1912,  61,  64;  the  federal 
convention  of  1787,  89,  256; 
in  New  York,  154,  186,  235, 
257. 

Conventions,  Nominating,  discussed 
generally,  219-246;  right  to, 
should  be  guaranteed  by  the 
Constitution,  220,  225 ;  their  or- 
igin, 229;  abuses  of,  229,  237; 
movement  to  abolish,  230,  239- 
240;  their  merits  and  advan- 
tages, 236-237,  242-246. 

Cotting  vs.  Kansas  City  Stock 
Yards  Co.,  123. 

Courts,  see  Judiciary. 

Coxey's  Army,  181,  199. 

Criminal  Procedure,  delays  in,  126, 
143-146. 

Cromwell,  Oliver,  34-35. 

Crown,  power  limited  by  Magna 
Carta,  11,  12,  21-25;  former  ex- 
ercise of  legislative  power,  17; 
maxim  that  "the  king  can  do 
no  wrong,"  98,  102,  105,  108, 
114;  sued  under  the  Petition  of 
Right,  99-102;  not  suable  in 
tort,  102. 

CuUen,  Chief  Judge,  80,  139,  210. 

Davis  vs.  Gray,  115. 

Day  in  court,  13,  121,  150. 

Debs  case,  148-151,  212,  215-216. 


Declaration  of  Independence,  pro- 
claimed the  inalienal)le  rights  of 
the  individual,  4,  81;  relation  to 
the  Mayflower  Compact,  30;  its 
spirit  perpetuated,  76;  marked 
human  progress  towards  liberty, 
203;    its  truths  eternal,  203. 

Demagogue,  his  plea  that  the 
people  are  infallible,  43;  his  well- 
known  arts,  192. 

Democracy,  the  fallacies  of  absolute, 
39-40,  43,  165;  in  Plymouth  col- 
ony, 39;  historical  failures,  42,  75, 
205. 

Democratic  party,  principles  and 
recent  campaigns,  178  sqq. ;  tarilT 
legislation,  195-198;  on  use  of 
injunctions,  213-214. 

Despotism,  equal  laws  a  feature  of, 
36;  will  result  from  increasing 
power  of  the  executive,  44. 

Dicey,  A.  V.,   15,   103. 

Dies  parentales,  27. 

Due  course  of  law,  in  New  York 
bill  of  rights  of  1787,  23. 

Due  process  of  law,  universal  ap- 
phcation  in  the  United  States,  18; 
equivalent  of  "law  of  the  land" 
(q.v.),  18;  substance  of  expres- 
sion in  Magna  Carta,  18;  history 
of  expression  in  America,  18-19, 
23-21;  meaning,  19,  22-24;  ear- 
Uest  use,  22-23;  term  meaningless 
to  man  in  the  street,  48;  principle 
applied  in  the  Tenement  House 
case,  54;  in  the  Ives  case  and  Em- 
ployers' Liability  cases,  65,  68. 

Education,  Catholic  parochial 
schools,  247-260;  primary  and 
elementary,  253;  the  Catholic 
university,  255;  public  grants  to 
private  schools,  256,  257. 


274 


INDEX 


Edward  I.,  100. 

Edward  III..  7,  8,  11,  22,  23. 

Edward  the  Confessor,  7. 

Egyptians,  27,  168. 

Election  Law  (New  York),  209,  219. 

Elections,  primary  elections  a  men- 
ace, 39,  142,  227-228,  231-236, 
238,  245-246;  presidential,  178 
sqq.;  nomination  of  candidates, 
207,  219-246;  vote  on  consti- 
tutional amendments,  208-209; 
effect  of  the  short  ballot,  222-224; 
secret  ballot  objectionable,  228; 
some  New  York  statistics,  231- 
233;  origin  of  primaries,  239-240; 
to  judicial  office,  243-245.  See 
Conventions. 

Electorate,  responsible  for  political 
evils,  205-206,  245;  voting  a 
duty,  206,  238,  245;  indifference 
and  negligence  of,  207,  208,  209, 
230-232,  237,  240;  remedy  for 
corruption,  237-238. 

Eleventh  amendment,  main  treat- 
ment, 87-129;  text,  91;  possibly 
quaU6ed,  97,  110. 

Employers'  LiabiUty  cases,  61-64, 
67-68,  121. 

English  church,  its  part  in  Magna 
Carta,  3,  4, 11,  12;  freed  from  the 
crown  by  Magna  Carta,  11,  12. 

England,  political  thought  in  the 
13th  and  14th  centuries,  6-9, 
18-19;  taxation,  9,  16-18;  courts, 
10,  17,  76,  77,  103-107;  class 
legislation,  11;  acts  of  Supremacy 
and  Uniformity,  32,  36-37;  debt 
to  Puritanism,  34-35;  in  the 
World  War,  35,  261,  267-270; 
labor  legislation,  79;  pro  ective 
tariff,  196;  cost  of  living,  199, 
200;  board  of  trade,  200;  union 
of     legislative     and      executive 


powers,  227-228;  state  aid  to 
parochial  schools,  256.  See  Eng- 
hsh  church  and  Parliament. 

Entick  vs.  Carrington,  104. 

Equality  before  the  law,  31,  35, 
152,  161. 

Europe,  political  ideas  in  the  13th 
century,  6;  in  1620,  35;  the  great 
war,  35,  41,  267  sqq.;  source  of 
legislative  schemes,  76;  industrial 
competition  with  the  United 
States,  196-197;  high  cost  of 
livmg,  200. 

Executive,  and  legislative  power  in 
England,  17;  power  limited  by 
Magna  Carta,  24-25;  increase  in 
power  threatens  despotism,  44, 
223-224;  shifting  responsibility 
to  the  courts,  47;  duty  to  uphold 
the  Constitution,  171-172;  senti- 
ment against  a  third  term,  186- 
188;  now  most  powerful  branch 
of  the  government,  220;  should 
not  exercise  the  lawmaking 
power,  227;  control  of  foreign 
relations,  269. 

Feather  vs.  The  Queen,  104. 

Federalist,  quoted  on  judicial 
power,  71-72,  109. 

Fifteenth  amendment,  83,  110. 

Fifth  amendment,  19,  68. 

Fitts  vs.  McGhee,  118. 

Fitzwater  vs.  Warren,  138. 

Five  Knights  case,  15. 

Fourteenth  amendment,  24,  36,  68, 
110,  111,  169. 

France,  early  charters  of  liberties, 
5;  les  lois  fondamentales,  7;  leg- 
islative and  executive  powers, 
76,  77,  227-228;  forced  loans, 
164;  French  Revolution,  164;  cost 
of  living,  200;    friendly  relations 


INDEX 


275 


with  America,  261-266;  in  the 
World  War,  261,  262-266;  aid  to 
American  revoUitionists,  262- 
264;  treaty  of  alliance  with  Amer- 
ica of  1778,  265. 

France- America  Committee,  261. 

Fuller,  Chief  Justice,  46,  173. 

Fundamental  laws,  idea  revived  by 
Magna  Carta,  6-7;  in  Greece 
and  Rome,  6;  in  France,  7;  a 
controlling  principle  of  American 
constitutions,  8,  73;  idea  aban- 
doned in  England,  9;  theory  may 
yet  be  applied  by  English  courts, 
11.    See  Constitutions. 

Gay  nor,  WiUiam  J.,  54,  55,  57. 

Georgia,  89,  90,  95. 

Glen  Cove  parochial  school,  247, 259. 

Government,  origin  and  importance 
of  separation  of  powers,  4,  13,  16, 
17,  18,  227;  depends  more  upon 
men  than  upon  laws,  28,  206, 
221;  governmental  powers  de- 
rived from  the  consent  of  the 
governed,  30;  government  by 
the  legislature  preferable  to  gov- 
ernment by  the  judiciary,  45,  46; 
the  form  may  survive  the  sub- 
stance, 46;  constant  extension 
of  governmental  functions,  74, 
80,  120,  220;  the  American  gov- 
ernment different  from  others, 
76,  161,  227;  trend  toward  cen- 
tralization in  America,  176;  local 
self-government  essential,  177; 
need  of  trained  experts,  220-221. 
See  Congress,  Constitutional  gov- 
ernment, Democracy,  Executive, 
Judiciary,  Legislature,  Minori- 
ties, Majorities,  Representative 
government,  and  State  govern- 
ments. 


Graduated  taxation,  general  dis- 
cussion, 159-177;  exempts  the 
majority  and  burdens  the  mi- 
nority, 160,  163,  166;  a  means 
to  break  up  large  fortunes, 
160,  169-170;  may  amount  to 
confiscation,  163-166;  necessarily 
arbitrary,  163;  as  forced  loans 
in  France,  164;  I^ecky's  views, 
164-165;  McCulloch's  views, 
165-166;  views  of  Leroy-Beau- 
liou,    166. 

Great  Britain,  10,  101.  See  England. 

Great  Charter,  see  Magna  Carta. 

Greece,  fundamental  laws  in,  6; 
ancestor- worship,  27;  Athenian 
democracy,  42,  75 . 

Gunter  vs.  Atlantic  Coast  Line,  96. 

Habeas  corpus,  W^rit  of,  the  bul- 
wark of  personal  liberty,  15,  16; 
its  antecedent  in  Magna  Carta, 
15;  in  England,  15,  107;  rendered 
effective  by  the  courts,  77. 

Hamilton,  Alexander,  71,  74, 88, 161. 

Hampden,  John,  17,  34. 

Hans  vs.  Louisiana,  95. 

Heam,  Lafcadio,  28,  29n. 

Henry  VIIL,  32,  36. 

Holden  vs.  Hardy,  60. 

Hunter  vs.  Wood,  119n. 

Impositions,  Case  of,  17. 

Income  Tax  cases,  173,  175. 

Income  Tax,  159,  173-175. 

Inheritance  Tax,  159-160,  167-173. 

Initiative  and  Referendum,  a  men- 
ace to  our  republican  form  of 
government,  39,  193;  origin  in 
distrust  of  legislatures,  14;  agi- 
tation for,  47,  204;  in  Australia, 
81;  a  scheme  of  the  Progressives, 
204-209. 


276 


INDEX 


Injunctions,  as  used  to  restrain 
state  ofTicers,  87-88,  97,  109-111; 
to  restrain  officers  of  the  crown 
in  England,  106-107;  to  restrain 
criminal  proceedings,  117-119; 
to  prevent  the  enforcement  of 
unconstitutional  state  statutes, 
120,  125,  127,  128;  use  in  con- 
nection with  strikes  and  labor 
fhsputes,  146-152,  212-217;  New 
YorH  practice,  148,  151-152. 

Inquisition,  Writ  of,  14,  15. 

Institutions,  the  slower  their 
growth  the  more  enduring  they 
are,  1;  Enghsh  source  of  Ameri- 
can institutions,  98,  266-267; 
the  Roman  Cathohc  church  and 
American    institutions,    249-250. 

Intestate  succession  167-169. 

Ives  case,  65-69,  153. 

Jacobs  case,  49-57,  153,  154. 

James  I.,  17,  30n,  31  n. 

Japan,  27-29,  197. 

Jefferson,  Thomas,  186,  187,  189, 
197,  205. 

John,  King,  4,  7,  12,  25. 

Judges,  qualifications,  13,  14,  70, 
142,  243-245;  bound  by  princi- 
ples, rules  and  precedents,  46; 
not  infaUible,  47;  duty  to  enforce 
the  law,  128,  129,  209;  selection 
and  tenure,  139-142,  243-245; 
should  be  defended  against  un- 
just criticism,  69-70,  126-128, 
157-158.  See  Judiciary  and 
Recall. 

Judiciary,  power  to  annul  unconsti- 
tutional laws,  7-9,  25,  42  sqq.,  70 
sqq.,  87  sqq.,  109  sqq,;  former 
dependence  upon  the  crown,  10, 
17;  has  no  power  over  legislation 
in  England  and  France,   11,  76, 


77,  107;  importance  recognized 
in  Magna  Carta,  13,  14;  de- 
fended against  unjust  criticism, 
43  sqq.,  130-158,  181,  193,  211- 
212;  government  by,  45-46;  rules 
for  determining  the  constitution- 
ahty  of  a  statute,  45,  46,  52; 
charged  with  having  usurped 
power  over  legislation,  45,  70,  81; 
examples  of  alleged  abuse  of 
power,  48-68;  cannot  control 
legislative  discretion,  52;  should 
avoid  judicial  legislation,  62,  135; 
necessity  of  defending  against  un- 
fair criticism,  69,  70,  126-128, 
158;  must  enforce  the  Bill  of 
Rights,  77 ;  control  over  executive 
and  administrative  officers,  103- 
107,  111,  114;  necessity  for  confi- 
dence in,  126-128;  the  bulwark 
of  liberty,  128,  226;  independ- 
ence of,  141,  142,  226;  not  re- 
sponsible for  delays,  142-146.  See 
Judges,  Constitutional  limita- 
tions, Injunctions,  and  Recall. 
Judiciary,  Federal,  jurisdiction  to 
enjoin  state  officers,  87,  108-110, 
113,  117,  119;  efforts  to  curtail 
power  of,  88,  125;  jurisdiction 
Umited,  97;  power  to  annul  state 
laws  a  necessity,  108,  109,  112, 
116,  12t-129;  compels  the  states 
to  obey  the  Constitution,  113; 
power  to  enjoin  criminal  prose- 
cutions by  the  states,  117-119; 
causes  of  dissatisfaction  with, 
126;  oath  of  office  of  judges, 
127;  constituted  as  a  bulwark  of 
fiberty,  128;  assaults  upon,  128, 
146-152;  issuance  of  injunctions 
in  labor  disputes,  213-217;  power 
to  punish  for  contempt,  215-217. 
See  also  Supreme  Court. 


INDEX 


277 


Jurisprudence,  as  a  science,  13,  52. 

Jury-trial,  origin  in  Magna  Carta, 
15,  19-20;  early  history,  19-20; 
a  right  assured  by  the  judicial 
power,  78;  not  in  cases  of  con- 
tempt, 215. 

Justice,  political  justice  secured  by 
Magna  Carta,  1,  4,  13-15;  the 
highest  political  liberty,  13;  uni- 
formity and  certainty  essential 
in  its  administration,  13;  social 
justice,  43,  81-82;  delays  in  its 
administration,  125,  126,  142-146. 

Knisley  vs.  Pratt,  137,  155. 

Labor,  competition  of  foreign  work- 
men, 196,  197,  198;  conditions 
in  1896,  198-199.  See  Master 
and  servant. 

Labor  laws,  in  New  York,  50,  56, 
58,  59,  137,  156. 

Labor  unions,  attitude  toward  the 
courts,  131,  110-141;  some  labor 
leaders,  131,  147,  212;  opposition 
to  injunctions,  146-152. 

Labourers,  Statute  of,  79. 

Langford  vs.  United  States,  103. 

Langton,  Stephen,  5,  12. 

Law,  how  to  be  administered,  13; 
wiser  than  those  who  administer 
it,  14;  principle  of  the  suprem- 
acy of  the  law,  II,  103-107,  111, 
114;  just  and  equal  laws,  31,  35, 
36,  37,  152;  equality  before  the 
law,  35,  36,  161;  growing  disre- 
gard of,  43,  2(*1;  touches  every 
individual,  85.  -See  Common  law. 
Due  process  of  law.  Fundamen- 
tal laws.  Law  of  the  land,  Jus- 
tice, Judges,  and  Judiciary. 

Lawlessness,  manifested  in  alleged 
reforms,  43,  and  in  labor  organi- 


zations, 150,  217;  its  growth  in 
connection  with  the  spread  of 
sociaUsm,  201. 

Law  of  the  land,  a  phrase  wiser 
than  those  who  wrote  it,  5;  the 
epitome  of  ancient  and  forgotten 
wisdom,  5-6;  guaranteed  by 
Magna  Carta,  9,  18,  21,  22; 
the  equivalent  of  "due  process 
of  law"  (q.v.),  18;  meaning,  18, 
19,  21,  22;  in  American  consti- 
tutions, 18-19,  23-24;  in  the 
Petition  of  Right,  23. 

Lawyers,  see  Bar. 

Lecky,  W.  E.  H.,  164. 

Legislation,  formerly  not  a  panacea 
for  all  ills,  9;  practical  reforms 
needed,  4 1,  205-206;  alleged  social 
legislation,  49-54,  153,  154;  par- 
ticular legislation  criticized  as  be- 
ing arbitrary,  crude,  experimental, 
meddlesome,  and  oppressive,  52, 
80,  82,  120-125,  163,  245;  a 
rule  of  construction,  154-155; 
necessity  for  exact  language,  208; 
great  volume  of  statutes,  204, 
208.  See  Class  legislation  and 
Social  legislation. 

Legislature,  taxation  originally  its 
chief  function,  9;  limitations  up- 
on, 43-46,  51,  70,  71,  78,  81,  124; 
corruption  charged  by  social  re- 
formers, 41;  abandoning  consti- 
tutional questions  to  the  courts, 
47;  duty  to  apply  constitutional 
principles,  52;  supreme  in  its 
sphere,  52;  power  to  protect 
the  public  health,  59,  60.  See 
Constitutional  limitations.  Legis- 
lation, and  Congress. 

Leroy-Beaulieu,  Pierre  Paul,  166. 

Liberty,  Civil,  guaranteed  by  Mag- 
na Carta,  1,  4,  5;  Declaration  of 


278 


INDEX 


Independence,  4,  81;  early  char- 
ters of  the  French  kings,  5;  writ 
of  habeas  corpus  its  bulwark,  15, 
16;  conditions  necessary  for  its 
perpetuation,  26,  36,  37;  guar- 
anteed by  the  Constitution,  51, 
76;  legislative  interference  with, 
74,  80;  of  vital  concern  to  every- 
one, 84;  guarded  by  the  common 
law,  98;  its  essence,  124;  some 
political  documents,  203;  threat- 
ened by  temporary  majorities 
(q.v.),  211. 

Liberty,  Constitutional,  Justice 
Story  on,  25;  in  the  custody  of 
the  American  people,  26;  the 
Pilgrim  Fathers  assist  at  its  birth 
in  America,  30. 

Liberty,  Religious,  secured  by  the 
New  York  constitution,  12;  idea 
of,  in  Magna  Carta,  12,  13;  es- 
tablished in  America  by  the  Pil- 
grims of  Plymouth,  32,  34;  our 
greatest  blessing,  34;  secured  by 
the  courts,  77-78;  favored  by 
non-sectarian  public  schools,  248; 
fostered  in  America  by  Protes- 
tants, 251,  259;  formerly  denied 
to  Catholics  in  New  York,  258; 
secured  temporarily  in  New  York 
by  Governor  Dongan,  259. 

Lincoln,  Abraham,  26,  191,  246. 

Lottery  case,  46. 

Madison,  James,  88,  186,  189,  197. 

Magna  Carta,  general  treatment, 
1-26;  marked  our  greatest  politi- 
cal epoch,  1 ;  saved  England  from 
despotism,  1;  the  source  of  rep- 
resentative government,  1-2,  16, 
18;  the  foundation  of  liberty  and 
justice,  1,  4;  reissues  and  con- 
firmations,  2,    3,    7,    8,    20,    22; 


extoUed  by  the  royal  governor 
of  New  York,  2;  crystallized  and 
perpetuated  English  liberties,  2, 
3,5,  21;  all  Americans  enjoy  its 
privileges,  2,  3,  5;  granted  at 
Runnymede,  June  15,  1215,  3; 
still  on  the  EngUsh  statute  books, 
3;  a  battle-cry  against  tyranny, 
3,  11;  modern  criticism  of,  3-4, 
7,  8,  15,  19;  the  value  of  its  tra- 
ditions, 4-5,  26;  based  upon 
eternal  truths  and  to  endure  for- 
ever, 5,  21,  203;  established  the 
rights  of  the  individual  as  against 
the  government,  6,  7;  long  re- 
garded as  an  unalterable  funda- 
mental law,  6-10;  limited  the 
power  of  the  king,  11,  12,  24-25; 
denounced  by  the  Pope,  12;  estab- 
lished the  supremacy  of  the  law, 
14;  translated  and  explained  in 
the  churches,  14;  guaranteed 
the  writ  of  habeas  corpus,  15; 
separated  legislative  and  execu- 
tive power,  16;  prevented  taxa- 
tion without  the  consent  of  par- 
liament, 16-17;  the  law  of  the 
land,  18-22;  jury-trial,  19,  20; 
supplemented  by  the  statute  of 
1354,  22-23;  justified  revolution 
for  cause,  25. 
Majorities,  Temporary,  may  yet 
be  restrained  in  England,  11; 
arbitrary  action,  40,  124;  their 
aUeged  infaUibifity  a  dangerous 
doctrine,  43;  the  proposal  to 
free  them  from  all  restraints,  43; 
their  ever-changing  opinions  and 
desires  as  a  rule  of  constitutional 
construction,  45-46;  oppressive 
class  legislation,  74,  78-79;  need 
to  be  restrained,  75;  exercise  of 
the    taxing    power,    165;    would 


INDEX 


279 


over-rule  the  courts,  211.  iSee 
Minorities. 

MaUet,  Monsieur,  262,  266. 

Marbury  vs.  Madison,  8,  72,  100, 
124. 

Marshall,  Chief  Justice,  his  deci- 
sion in  Marbury  vs.  Madison,  8-9, 
72-73,  100;  on  the  Constitution, 
21;  on  the  suability  of  a  state, 
88;  on  the  eleventh  amend- 
ment, 93-94,  95;  on  restraining 
state  officers,  113-114;  on  civil 
hberty,  124:  on  the  duty  of 
judges,  129;  unpopular  decisions, 
210. 

Martial  law,  as  the  alternative  of 
injunctions,  151. 

Master  and  servant,  three  common- 
law  rules  changed  by  Congress, 
62-63,  68;  the  common  law  to 
be  changed  by  the  legislature,  not 
by  the  courts,  68-69,  134-135, 
137-138,  155;  soundness  of  the 
common-law  rules,  132-134.  See 
Workmen's  Compensation. 

Mayflower,  27,  29,  30.  32,  37. 

Mayflower  Compact,  main  treat- 
ment, 27-41 ;  its  interest  to  Amer- 
icans, 29,  30,  31,  40;  caUed  the 
first  written  constitution,  30; 
text  as  preserved  by  Governor 
Bradford,  30n-31n;  its  covenant 
for  just  and  equal  laws,  31,  35-37; 
initiated  republican  government, 
31,  40. 

Minorities,  English  courts  may  yet 
have  to  protect,  11;  their  pro- 
tection entrusted  by  the  founders 
to  the  courts,  25,  43,  75,  76,  78; 
secure  under  representative  gov- 
ernment, 40;  threatened  by  the 
short  ballot,  223.     See  Judiciary. 

Monroe,  James,  186,  189,  197. 


Morality,  a  condition  of  social 
welfare  and  individual  happiness, 
250,  252;  taught  in  CathoUc 
schools,  250,  255.  See  Constitu- 
tional Morality. 

Natural  rights,  a  cardinal  principle 
of  Magna  Carta,  6. 

New  York  city,  tobacco  workers 
in  tenements,  49-57;  board  of 
health,  50;  death-rate,  51;  tene- 
ment-house conditions,  55-57; 
courts,  141, 142;  parochial  schools, 
254,  257. 

New  York  state,  constitution,  12, 
19,  23,  24,  49,  258;  Court  of 
Appeals,  50,  57,  65,  80,  138,  139, 
141,  145,  146,  154-156,  212; 
Bar  Association,  75,  131,  140; 
conflicts  with  the  federal  courts, 
87;  practice  as  to  injunctions, 
148,  151-152;  population,  204, 
234;  religious  denominations,  256. 

North  CaroUna  vs.  Temple,  95. 

Officers,  Public,  responsibility  of, 
14,  103-106,  111,  114,  226;  fair 
criticism  desirable,  47;  greater 
permanency  of  tenure  advocated, 
143;  their  selection  important, 
221;  in  New  York,  222-224. 

Osborn  vs.  U.  S.  Bank,  112-114. 

Parliament,  and  Magna  Carta,  3; 
its  power  formerly  limited,  7,  8, 
10;  its  supremacy,  9-11,  17-18, 
76-77,  107;  formerly  beUeved  to 
exist  to  uphold  Magna  Carta,  10, 
25;  its  consent  to  taxation  nec- 
essary, 16;  parliament  of  1265 
developed  from  the  commune 
consilium,  16;  prototype  in  parHa- 
ment  of  Simon  de  Montfort,  18; 


280 


INDEX 


labor  laws,  79;  statute  on  the 
Petition  of  Right,  101. 

Parties,  Political,  essential  to  free 
government,  206,  238-242;  should 
follow  the  representative  prin- 
ciple, 207;  effect  of  initiative  and 
referendum  upon,  207;  corrup- 
tion not  cured  by  primaries,  236, 
238;  party  government,  238-242. 

People  vs.  Koemer,  145. 

People  vs.  Lochner,  57-58,  153. 

People  vs.  Lustig,  145. 

People  vs.  Turley,  143. 

Perkins,  Jeunes  Breck,  263,  264. 

Persecution,  Religious,  in  16th  and 
17th  centuries,  33-34;  by  Puri- 
tans in  Massachusetts,  33;  often 
really  political,  33n,  34;  in  Eng- 
land, 36-37;  of  Catholics  in 
America,  258-259. 

Petition  of  Right,  relation  to  Magna 
Carta,  15,  23;  procedure  under, 
99-102. 

Phelps,  Edward  J.,  26n. 

Pilgrim  Fathers,  debt  of  America 
to,  29,  32,  34,  35;  framed  first 
written  constitution,  30;  their 
tolerance,  32,  33;  their  relation 
to  the  Puritans,  32,  34;  hated 
by  both  Puritans  and  Cavahers, 
32;  separated  Church  and  State 
and  estabUshed  reUgious  liberty, 
32,  34;  their  experiment  in  com- 
munism, 37-39;  estabUshed  repre- 
sentative government  in  America, 
39;  mihtary  preparedness,  41. 
See  Mayflower  Compact. 

Plymouth  colony,  government  of, 
23,  37,  39;  Governor  Brad- 
ford's annals  of,  30n;  freedom 
from  religious  persecution,  33; 
absorbed  by  Massachusetts  in 
1691,    37. 


Poindexter  vs.  Greenhow,  112. 

Police  power,  exercised  by  the  leg- 
islature, 60;  its  just  exercise  not 
hindered  by  the  courts,  81-82; 
very  comprehensive,  211. 

Precedents,  their  value  in  the  law, 
22;  judges  bound  by,  46;  danger 
of  establishing,  52. 

Primary  elections,  see  Elections. 

Progressive  party,  183,  204,  211, 
217. 

Prohibition,  Writ  of,  107. 

Prosecuting  attorney,  his  work,  143, 
144,  146. 

Prout  vs.  Starr,  110. 

PubUc  service  corporations,  leg- 
islative oppression  of,  120;  right 
of  appeal  to  the  courts,  121-126; 
regulation  necessary,  126. 

Puritans,  their  relation  to  the 
Pilgrims,  32,  34;  their  views,  32- 
33;  our  debt  to  them,  34;  their 
influence  in  England,  34-35. 

Quakers,  33n. 

Quo  warranto.  Writ  of,  107. 

Railroads,  oppressed  by  legislation, 
120,  121,  123. 

RecaU,  a  menace  to  our  repub- 
lican governments,  39,  193,  205- 
207,  209-211;  agitation  for,  47; 
apphed  to  judicial  decisions,  211. 

Referendum,  see  Initiative. 

Religion,  growing  disrespect  for, 
201;  impracticable  to  teach  it  in 
the  pubhc  schools,  248;  the  foun- 
dation of  our  social  order,  250- 
252;  should  be  taught  system- 
atically to  school  children,  252- 
254,  256;  reUgious  denominations 
in  the  United  States,  255-256. 
See  Liberty  and  Persecution. 


INDEX 


281 


Representative  government,  foun- 
dation laid  by  Magna  Carta,  1, 
16,  18;  synonymous  witti  the 
republican  form  of  government 
guaranteed  by  the  Constitution, 
31,  39,  75,  76,  227;  first  es- 
tablished in  America  by  the  Pil- 
grims, 31,  39,  40;  a  development 
from  democracy,  39;  menaced 
by  modern  political  nostrums,  39, 
43,  204-211,  228,  245-216;  the 
form  may  survive  the  substance, 
46;  depends  upon  the  electorate, 
206;  involved  in  nominating 
conventions,  225  sqq.;  contribu- 
tion of  English-speaking  race, 
226. 

Republican  form  of  government, 
see  Representative  government. 

Republican  party,  campaigns,  178 
sqq.;  principles,  217-218;  New 
York  convention  of  1914,  234. 

Revolution,  American,  25,  162, 
262-266. 

Roman  Catholic  church,  parochial 
schools,  217-260;  sacrifices  for 
education,  247,  251;  attitude 
toward  public  schools,  248-249; 
teaches  character,  good  citizenship 
and  morality,  250,  252,  253,  255, 
256;  increasing  strength  in  the 
United  States,  256;  formerly 
persecuted  in  America,  258-259. 

Rome,  6,  27,  44,  168. 

Roosevelt,  Theodore,  56-67,  121, 
153-1.56,  159-160,  18.3-189,  209, 
213-215. 

Root,  EUhu,  75,  153,  176,  185,  194. 

Separation  of  powers,  see   Govern- 
ment. 
Shinto,  worship  of,  27-29. 
Ship-Money,  Case  of,  17. 


Short  ballot,  see  Elections. 

Sixteenth   amendment,   83,   83n. 

Sociahsm,  tends  to  destroy  religion, 
morality  and  law,  201;  opposi- 
tion of  Socialists  to  the  courts, 
211.     See  Communism. 

Social  reform,  as  class  legislation, 
43;  practical  reform  can  be  ef- 
fected by  electing  legislators  of 
character  and  ability,  44;  not 
to  be  accompUshed  by  exalting 
the  legislature  at  the  expense  of 
the  courts,  44,  45,  84,  140;  not 
impeded  by  the  courts  or  our 
constitutions,  56,  68-69,  81-82, 
135,  137,  155. 

Standish,  Myles,  33,  41. 

State  governments,  American,  re- 
served powers  of  the  states,  61, 
62,  177;  suability  of  a  state,  87 
sqq.;  theory  of  immunity  from 
suit,  98;  prohibitions  against, 
110;  compelled  to  obey  the  fed- 
eral Constitution,  113;  state  offi- 
cers are  suable,  114;  conflicts 
with  the  federal  courts,  117-128; 
right  to  regulate  inheritances, 
160, 167-172;  governmental  func- 
tions, 172;  threatened  by  pri- 
maries, 246. 

Strikes,  use  of  injunctions  to  sup- 
press, 146-152,  212-215;  Pullman 
strike  of  1891,  148,  151,  215-216. 

Supremacy  and  Uniformity,  Acts 
of,  32,  36-37. 

Supreme  Court,  Federal,  some  itn- 
portant  decisions,  8,  57,  60,  61, 
62,  72,  89,  93,  95,  96,  100,  101, 
113,  173;  view  of  due  process  of 
law,  21-22;  attacks  upon,  63, 
64,  68;  jurisdiction  of  suits 
against  states,  93  sqq."  See 
Judiciary. 


282 


INDEX 


Taft,  William  H.,  184,  190-193, 
217-218.  1 

Tariir,  doctrine  of  protective,  193- 
201;  non-partisan  commissions, 
194,  218;  free  trade  favored  by 
the  Democrats,  195,  198;  act 
of  July  4,  1789,  196;  evils  of 
Democratic  legislation,  198,  199; 
not  responsible  for  the  high  cost 
of  living,  199. 

Taxation,  the  chief  legislative  func- 
tion in  the  13th  and  14th  cen- 
turies, 9,  16;  provisions  in  Magna 
Carta,  16;  control  of  parliament 
over,  16,  17;  early  controversies 
in  England,  16-18;  and  represen- 
tation, 16-17, 162-163;  essentially 
a  legislative  function,  17;  inheri- 
tance tax,  159-160,  167-173; 
income  tax,  159,  173-175;  power 
to  tax  is  the  power  to  destroy, 
160;  conflict  of  state  and  fed- 
eral, 160;  should  be  equal  and 
apportioned,  161;  taxing  power 
liable  to  abuse,  161;  proportional 
taxation,  161-163 ;  federal  rule  of 
apportionment,  173-174;  excise 
tax,  173.  See  Graduated  taxa- 
tion. 

Tenement  case,  see  Jacobs  case. 

Throop,  Governor,  221. 

Truth,  indispensable  even  in  polit- 
ical discussions,  69;  trite  truths 
often  the  most  valuable,  202; 
eternal,  203. 

Turgot,  Baron  de  L'Aulne,  264. 

Unconstitutional  laws,  American 
doctrine  based  upon  the  statute 


of  1369,  7,  8,  11;  doctrine  for- 
merly recognized  in  England,  7- 
10;  Enghsh  courts  may  yet  an- 
nul, 11;  examples,  49,  57,  61,  65, 
122,  123,  137,  209;  Hamilton's 
views,  71-72;  cannot  always  be 
annulled  by  the  courts,  170-171. 
See  Constitutional  limitations. 

United  States  of  America,  termed  a 
government  of  laws  and  not  of 
men,  124;  population,  204;  debt 
to  France,  262-266;  treaty  of 
alliance  with  France,  265;  policy 
of  neutrality  in  European  wars, 
268-270;  foreign  relations  in 
the  hands  of  the  President, 
269. 

United  States  vs.  Lee,  101. 

United  States  vs.  O'Keefe,  100. 

Vassal  vs.  Massachusetts,  90. 

Washington,  George,  35,  186,  187, 
189,  197,  263,  268. 

Willcox  vs.  ConsoUdated  Gas  Co., 
122. 

Wilson,  Woodrow,  195,  198,  217, 
241. 

Workmen's  Compensation  laws, 
federal  enactments,  61-64,  67-68; 
New  York  statute,  65-69;  legis- 
lation not  prevented  by  the  courts 
or  the  Constitution,  68-69,  82; 
general  discussion,  132-138; 
should  be  confined  to  hazardous 
employments,  134-136;  the  Brit- 
ish act,  135. 

Young,  Ex  parte,  119n. 


..,„.pcr,nNftLUBRARVa',V,, 


AA 


000  291282    2 


'    l\ 


'■  '11 


jllljljifjiilljl/lj 


if 


fMiMJll|[UIM(IU)I(f)Iitlltll<l(ltIUIIUIJJ' 


I        ,    II'  I; 


Ili'H 


m! 


^11 


hit. 


!ii    Iffl 


ii 


)!! 


iiiiiiiiiiiiiiiifiiijiiiijii, 


